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Full text of "International law situations : 1939"

NAVAL WAR COLLEGE 
NEWPORT, R. I. 



INTERNATIONAL LAW 
SITUATIONS 

1939 



$ 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1940 



PREFACE 

" International Law Situations, 1939/' has been 
prepared by Payson Sibley Wild, Jr., Ph. D., pro- 
fessor of international law, Harvard University, 
and associate for international law at the Naval 
War College. It covers problems which have been 
the subject of discussion by members of the senior 
and junior classes of 1940. In the appendix there 
are certain laws and proclamations regarding neu- 
trality which are of current interest. 

While the conclusions reached are in no way of- 
ficial, the notes afford a convenient survey of mate- 
rial relating to the subjects presented, and they 
should be of value for purposes of reference. 

E. C. Kalbfus, 
Bear Admiiral, United States Navy, 

President, Naval War College. 
May 31, 1940. 

m 



CONTENTS 



Page 
Situation I. Neutral Duties and State Control of 
Enterprise: 
Solution: 

(a) - 2 

(6) 2 

(c) 2 

Notes: 

The growth of state control over the individual 2 

Effect of state controls upon international law 4 

Neutrality and state responsibility 6 

The criterion of private capacity 9 

Application of criterion to the present case 12 

Visit and search of public vessels 13 

The Altmark case 14 

Seizure for contraband 16 

Contraband lists of the 1939-40 war 17 

American position concerning British "blockade" 20 

The City of Flint 24 

Norwegian statement on the City of Flint 26 

Treatment of the United States mails 28 

Capture, escort, and control by warship and airplane. 35 

Resume" 38 

Solution: 

(a) 39 

(6) 39 

(c) 39 

Situation II. Neutrality Problems: Distress, Subma- 
rines, and Qualified Neutrality: 

Solution: 

(a) 42 

(6) 42 

(c) 42 

Notes: 

Vessels in distress 42 

Repair of damage caused by enemy fire 44 

Regulations in regard to submarines 46 

Neutrality act provisions 47 

Proclamation of the President November 4, 1939 48 

Commercial submarines 50 

Application to the present situation 50 

American neutrality and Latin America 51 

v 



VI CONTENTS 

Situation II. Neutrality Problems : Distress, Submarines, 
and Qualified Neutrality — Continued. 

Notes — Continued. Page 

Armed merchant vessels 52 

Qualified neutrality 54 

Application to other states "involved in war" 56 

Resume 57 

Solution: 

(a) 57 

(6) 58 

(c) 58 

Situation III. Contiguous Zones, Airplanes, and Neu- 
trality: 
Solution: 

(a) 60 

(b) 60 

(c) 60 

(d) 60 

Notes: 

Contiguous zones 60 

History of contiguous zones 62 

Contiguous zones for defense and other purposes 64 

The declaration of Panama, October 3, 1939 66 

British Admiralty statement on the Panama declara- 
tion 68 

American Republics' statement on the Graf Von Spee 

incident 69 

Belligerents' reply to neutrality-zone protest 71 

International law and the declaration of Panama 78 

Application to the present case 80 

Neutrality of the British dominions 81 

Airplanes in neutral territory 85 

Neutral territory as a base 87 

Neutrality law restrictions on use of American ports. _ 89 

President's proclamation, September 5, 1939 91 

Codes and conventions on use of neutral territory 91 

United States treaty with Panama 92 

Application to the present case 95 

Resume" 97 

Solution: 

(a) 98 

(6) 98 

(c) 98 

(d) 98 

Appendixes: 

I. Neutrality Law of May 1. 1937 101 

II. Neutrality Act of November 4, 1939 109 

III. Proclamation of neutrality (General) by the President, 

September5, 1939 123 



CONTENTS VII 

Appendixes — Continued. Page 

IV. Regulations governing the enforcement of neutrality. _ 132 
V. Proclamation (Special): Export of arms, ammunition, 

and implements of war, September 5, 1939 134 

VI. Regulations concerning neutrality in the Canal Zone 139 

VII. Regulations governing the passage of vessels through 

the Panama Canal 142 

VIII. Proclamation of a national emergency 144 

IX. Proclamation of a state of war under act of November 

4, 1939 145 

X. Proclamation defining combat area 146 

XI. Proclamation concerning submarines, November 4, 1939. 

(See main text of this volume, page 48.) 

XII. Regulations concerning travel on belligerent vessels 149 

XIII. Regulations concerning arms on American vessels 151 

XIV. Flights of belligerent military aircraft 152 

XV. Regulations concerning travel into combat areas 153 

XVI. Travel on belligerent vessels in the Bay of Fundy 154 

XVII. Proclamation defining combat area, April 10, 1940 154 



Situation I. 

NEUTRAL DUTIES AND STATE CONTROL 
OF ENTERPRISE 

States A and B are at war. Other States are 
neutral. State C lias an island colony, Camla, 
where there are oil wells operated by the Seeoil 
Co., a privately incorporated concern in which the 
C government owns 55 percent of the stock and 
selects one-half of the directors. 

(a) State A sends a mission to Camla to pur- 
chase the entire output of the wells for the use of 
its navy. As the Seeoil Co. is about to make the 
arrangement, State B protests to State C that such 
a transaction would be a violation of C's neutrality 
obligations. 

(&) The Seeoil Co. sends oil to State D, adja- 
cent to State A, to be refined. The Cora, a tanker 
owned by the Seeoil Co. and carrying a cargo of 
crude oil, is encountered en route from Camla to 
State D by the Byron, a cruiser of State B. The 
Byron seizes the Cora on grounds of carrying con- 
traband. The Cora though not resisting visit and 
search, informed the Byron, when first summoned 
to lie to, that the Cora was a public vessel of 
State C. 

(c) A tanker of State E, the Elrod, carrying a 
cargo of gasoline which the owners of the vessel 
have purchased from the Seeoil Co. and are trans- 
porting to an island airplane base of State A, is 
visited, searched, and finally seized on grounds of 
unneutral service by the Box, a cruiser of State B. 

1 



Instead of placing a prize crew on board, the Bax 
directs the Elrod to proceed to a designated port 
of State B and sends out an airplane periodically 
to make certain that the Elrod is not deviating. 
What are the legal rights in each case ? 

solution 

(a) State C should cancel or refuse to have the 
agreement made, though it should have the oppor- 
tunity to prove that the transaction was purely 
commercial and nonpolitical in character. The ev- 
idence in this case, however, does not seem to sup- 
port any such contention on the part of State C. 

(b) Visit and search of the Cora by the Byron 
was legal. 

(c) The Elrod is not guilty of unneutral service. 
It is not impossible that the Elrod was legally 
under the control of the Bax, The question hinges 
upon this point: Was the airplane sufficiently in 
evidence to convince the captain of the Elrod that 
he was watched and under control ? 

notes 

THE GROWTH OF STATE CONTROL OVER THE 

INDIVIDUAL 

That governmental controls over business and 
enterprise, formerly in private hands, are increas- 
ing is an obvious fact today. The era of laissez 
faire is gone. Governments are in business and 
are regulating business on an ever augmenting 
scale. The types of ownership and control are ex- 
ceedingly diverse and vary from the direct State 
ownership of practically everything in Soviet Rus- 
sia to State licenses and trade subsidies found in 



so-called capitalist countries. In the United 
States, the Government owns and operates, for ex- 
ample, the Panama Railroad. The Federal Gov- 
ernment also exercises control through the form of 
corporations such as the Tennessee Valley Au- 
thority. It establishes banks, like the Export-Im- 
port Bank, or supports semipublic financial insti- 
tutions like the Federal Reserve banks. The 
French Government has taken over the arms in- 
dustry and owns stock in great corporations like 
the Potash concern. The boundary line between 
what is governmental and what is private can no 
longer be drawn with any degree of accuracy. 
Governments may own concerns outright, as pre- 
viously suggested, they may appoint some of the 
directors and own a large share of the stock, as 
in the Anglo-Iranian Oil Co., or they may regulate 
enterprise through commissions and other types of 
administrative offices. Any number of examples 
of State intervention through corporations, export 
and import regulations, trade monopolies, cartels, 
and subsidies may be cited, but enough has been 
said to indicate the fact that more and more hu- 
man activities are coming to be regarded as lying 
within the sphere of government. 

The effect upon international law of these 
changes within states has been and must be tre- 
mendous. As one writer recently has said : 

International society is in process of a transformation 
which international law can no longer afford to ignore. . . . 
It is submitted that all the customary rules touching inter- 
national state responsibility are, in fact, based upon a par- 
ticular division of the spheres of state and individual. 
These rules presuppose that the state has traditionally cer- 
tain functions, broadly speaking, the conduct of foreign 



policy, the control of the armed forces, and certain func- 
tions of executive government. . . . 

Apart from the duties corresponding to these state func- 
tions, the citizens were free to do and move as they liked. 
In particular, trade and industry was their concern and 
responsibility. Mercantilism did not influence these inter- 
national principles, partly because its reign was too brief and 
not sufficiently universal, but mainly because the principles 
of international state responsibility were developed during 
the 19th century, the century of laissez-faire. (W. Fried- 
mann, British Year Book of International Law, 1938, pp. 
118-119.) 

EFFECT OF STATE CONTROLS UPON 
INTERNATIONAL LAW 

The law between States cannot help being af- 
fected by changes in the law within States. Inter- 
national rules are not made in a vacuum, and are 
necessarily the product of the way of life of the 
international community. The increasing domes- 
tic collectivism has affected both State immunity 
and State responsibility. States have been prone 
to extend the historic sovereign immunities, 
granted to governmental agencies in days when 
governmental business was small, to the new forms 
of State activity. At the same time, the more a 
State has become involved in new enterprises, the 
more responsibility it has had to assume. The 
problems of immunity were encountered first, and 
became acute in conection with the shipping busi- 
ness. When public vessels w r ere granted immunity 
from local jurisdiction in the case of the Schooner 
Exchange vs. McF addon (7 Cranch 116) no great 
inconvenience in maritime affairs could arise, be- 
cause the bulk of the world's shipping was in pri- 
vate hands. Later on, toward the end of the nine- 
teenth century, however, when public ships of a 



commercial character began to appear, the difficul- 
ties of the immunity doctrine became more appar- 
ent. If immunity was to be granted solely on the 
basis of ownership, then all governmentally owned 
vessels would be free from suits and local controls, 
a most intolerable situation. The British and 
American courts, however, have continued to grant 
immunity to public vessels whether warships or 
freighters, though in practice the administrations 
in these countries have recognized a distinction 
on the basis of the use to which Government ships 
are put. 

The tendency, therefore, is to separate acts of 
State from acts of a commercial sort and not to 
claim immunity for the latter. Belgian, Italian, 
and Egyptian courts have taken the lead in as- 
suming jurisdiction over ships which, though 
owned by governments, are operating in what 
seems to be a nonpolitical or business capacity. 
The Soviet Union has not claimed immunity for its 
commercial agencies, and the Brussels Convention 
for the Unification of Certain Rules Concerning 
the Immunities of Governments Vessels, which 
went into effect in 1937, stated in article I that 
" seagoing vessels owned or operated by States 
* * * are subject in respect to claims relating 
to the operation of such vessels * * * to the 
same rules of liability and to the same obligations 
as those applicable to private vessels * * *" 
(Hudson International Legislation, III, 1837). 
Also article 26 of the Harvard Draft Code (Ameri- 
can Journal of International Law 1932, pp. 716) 
states that : 

A state need not accord the privileges and immunities to 
such juristic persons as corporations or associations for 



6 

profit separately organized by or under the authority of 
another state, regardless of the nature and extent of govern- 
mental interest therein or control thereof. 

In connection with legal immunities therefore, a 
line has been drawn between the actions of a gov- 
ernment in its public capacity and those in a jDrivate 
capacity. In regard to the responsibility of States, 
the issues have arisen later than they did with 
immunities, and as yet the same distinction be- 
tween the types of government operations has not 
been so clearly apparent. 

NEUTRALITY AND STATE RESPONSIBILITY 

In connection with neutrality, questions of re- 
sponsibility are grave indeed. According to the 
principles of traditional neutrality, every exten- 
sion of government into the realm of finance, trade, 
and business should mean a duty not to permit the 
sale or transfer of the articles or commodities under 
such public control to a belligerent power. Logi- 
cally, under such a doctrine, a completely socialist 
State like Soviet Russia today could sell nothing 
and could permit the export of no products to States 
engaged in a war in which Russia was neutral. 
The law on this subject, however, has not clearly 
crystallized to date. Precedents are relatively few 
and no dogmatic answer to the problem involving 
the Seeoil Co. can be rendered. 

Certain fundamental distinctions basic to the 
law of neutrality need to be examined. First of 
all, there is the distinction between the use of neu- 
tral territory as a base and its employment as a 
source of commercial supply. Armies and expedi- 
tions may not go out from neutral territory but 
belligerent governments may obtain supplies com- 



mercially. Though goods obtained commercially 
may be far more valuable to a belligerent than the 
assistance obtained from an expedition, the dis- 
tinction probably will continue to be recognized 
because of its advantages to belligerents and neu- 
trals alike. As long as States wish to buy and sell 
from and to each other they doubtless will cling 
to this convenient though not always strictly logi- 
cal line of demarcation between the commercial and 
the military. 

Another underlying distinction has been that 
between what a government may do and what a 
private citizen may do. The law of neutrality 
forbids neutral governments to give aid to a war- 
ring power, but permits private citizens to carry 
on trade relations. In regard to the latter, neutral 
governments have no responsibility except to apply 
impartially any regulations or restrictions which 
they may impose. These stipulations have been 
incorporated into the following conventions: 

Hague Convention V of 1907, Article 9. Every measure of 
restriction or prohibition taken by a neutral power . . . 
must be impartially applied by it to both belligerents. 

Hague Convention XIII, Article 9. A neutral power must 
apply impartially to the two belligerents the conditions, re- 
strictions, or prohibitions made by it in regard to the admis- 
sion into its ports, road-steads, or territorial waters, of 
belligerent warships or of their prizes. 

Article 6. The supply, in any manner, directly or indi- 
rectly, by a neutral power, of warships, ammunition, or war 
material of any kind, is forbidden. 

The question inevitably arises as to whether the 
expansion of government controls obliterates this 
distinction between governments and private citi- 
zens. Are governments going to be permitted to 
assume a commercial character and so be free to 



8 

sell to belligerents, or must the sale by any govern- 
mentally owned or controlled agency be completely 
prohibited? If the basic aim of the long-standing 
law is to thwart governmental contacts with a bel- 
ligerent, then logically if the same rules are to per- 
sist, governmental instrumentalities must be pro- 
hibited from making deals with warring powers. 
If the aim, however, was merely to prevent politi- 
cal partiality, and if governments in business can 
really act nonpolitically, should not State-owned 
or operated concerns be allowed to function as do 
private persons or concerns? 

The answers to these questions by various au- 
thorities have differed. Prof. Lawrence Preuss, of 
the University of Michigan (Some Effects of Gov- 
ernmental Controls on Neutral Duties, Proceed- 
ings, American Society of International Law, 1937, 
pp. 108-119), tends to take the rather strict line 
that State concerns must abstain entirely from 
belligerent contacts, and the Harvard Draft Code 
(American Journal of International Law, Supple- 
ment, July 1939, p. 239) also states "The rule of 
international law should be and probably is that a 
state when neutral is forbidden to do certain things, 
no matter in what capacity or through what agency' 
it does them." The drafters of this code, however, 
went on to say by way of modification, that "It 
might be argued that since a neutral state is not 
under a duty to prevent its nationals from doing 
certain things which it should refrain from doing 
itself, so it is not under a duty to refrain from 
doing those acts in its private capacity, provided 
that it accepts the consequence of submitting its 
property to the belligerent rights of capture and 
condemnation." 



9 

A different line is taken by Friedmann (op. cit.) 
who argues that abstention would be impractical, 
that it would penalize States unduly for engaging 
in socialistic experiments and would deprive other 
powers of needed supplies. It does seem as though 
common sense and the actual behavior of States 
dictate the drawing of some kind of a line between 
a State's sovereign and private capacities. Social- 
ist-minded nations will not feel bound to abstain 
from business contacts. The solution of the prob- 
lem in hand, therefore, will be sought upon the 
basis of what appear to be the actual needs and the 
legitimate aims of States today. 

THE CRITERION OF PRIVATE CAPACITY 

The endeavor to discover whether a State is op- 
erating in its sovereign or personal character is 
immensely difficult, but the elusive nature of the 
problem should not be allowed to halt the search. 
One must commence by enquiring as to the funda- 
mental reason for the origin of the rule barring 
governmental aid or sales to a State at war, and one 
discovers that it was designed to prevent political 
manipulation in favor of one of the parties to a 
conflict. At the core of neutrality lies imparti- 
ality, and governmental assistance, even though ex- 
tended with an effort at helping both sides in like 
fashion, seemed incompatible with the requirements 
of genuine impartiality. Abstention (for govern- 
ments) became the rule. Political favoritism was 
to be avoided, and with governments out of the pic- 
ture, and with most of the commercial area under 
private control, the State was not politically en- 
meshed in the conflict. A barrier against political 

247670—40 2 



10 

favors was the object, with the prohibition on gov- 
ernment aid serving merely as a means, not as an 
end in itself. 

If, as suggested, the nature of the deal, whether 
political or commercial, and not the fact of gov- 
ernment ownership or control, is to be the test for 
determining legal responsibility, and if it is politi- 
cal favoritism and political assistance rather than 
governmental supervision as such which gives taint 
to the transaction, then what is to be looked for 
in this quest for a criterion as to private capacity 
is the amount or extent of political bias or influ- 
ence manifest in any given arrangement between 
a belligerent government and a corporation or 
agency owned or controlled by a neutral State. 
The sending of armies, warships, and military sup- 
plies by one government to another is clearly politi- 
cal; likewise the granting of loans by a govern- 
ment bank would be political, prima facie. All 
such acts could properly be regarded as illegal 
because they could only be made with a definite 
political end in view. In an earlier age when the 
functions of government were fewer and when they 
were confined mainly to matters of police and de- 
fense, the legal ban on governmental assistance 
affected only this relatively narrow range of politi- 
cal activity. Now that governments are engaged 
in all sorts of enterprise taken over from the 
private domain, they are increasingly involved in 
matters more commercial than political. The pro- 
hibition against governmental transactions with a 
belligerent, designed to prevent assistance for po- 
litical purposes, is no longer so essential where 
business and trading interests are concerned. 



11 

To determine private capacity by means of hard 
and fast formulae seems unsatisfactory. Percent- 
ages of stock, numbers of directors, or forms of 
control do not in themselves furnish an adequate 
index of the amount of political direction involved. 
Where a government owns and operates a railway 
in very businesslike style, transportation of belli- 
gerent goods over such a line would not appear to 
affect the State's neutrality. On the other hand, 
industries mainly under private ownership may be 
guided or controlled indirectly by a government, 
in a very partial manner. The question to be 
asked, therefore, is whether the government in any 
given situation is active for political reasons. At 
issue are affirmative, political acts. If the neu- 
tral government merely allows its railways or ship- 
ping lines to operate without overt interference on 
its part or if it follows a policy of laissez faire, 
passively leaving matters to geography and the 
course of events, neutrality duties would not be in- 
fringed. It is admitted that the abandonment of 
a definite criterion such as government ownership 
or a specified amount of control involves great 
difficulties. It means a search into the motives 
and into the details of each particular act, and it 
would be far easier to apply some mechanically 
rigid rule by which one might know immediately 
whether a certain act were illegal or not, but in the 
light of governments' obvious desire and need to 
continue trading, it is essential to seek a criterion 
of private capacity which fits the practical needs 
of the world today. 



12 

APPLICATION OF PRIVATE CAPACITY CRITE- 
RION TO THE PRESENT CASE 

The transaction between State A and the Seeoil 
Co. is of doubtful legality, and in the circumstances 
State C should prevent it. This contract seems no 
ordinary one of a commercial nature. The poli- 
tical influence of State C in its official capacity 
seems to show through the entire set of negotia- 
tions. The fact that State A sent a mission to 
Camla brings in an element of diplomatic relations 
between States whch evidently goes beyond a purely 
business deal. Also the fact that State C is to 
purchase the entire output of the wells for the use 
of its navy makes the contract seem decidedly politi- 
cal. In a situation of this sort, State C should be 
extremely careful and should not allow any agree- 
ments to be made which have definitely unneutral 
implications. The law on this subject is admittedly 
fluid, but after more experience and with more 
precedents, a private capacity criterion should 
emerge as clearly as it already has in connection 
with immunity from jurisdiction. 

State C should be given the opportunity to demon- 
strate that the contract was commercial. The deal 
seems suspiciously political, and the burden of 
proof is upon State C, but the latter can cite prec- 
edents from the war of 1914-18 to show that neutral 
governments may agree to sell to as well as to buy 
from belligerent powers. Government-sponsored 
organizations like the N. O. T. in the Netherlands 
and the S. S. S. in Switzerland negotiated directly 
with States at war, and on August 5, 1916, in an 
agreement between Great Britain and Norway, the 
latter promised to supply Britain with 85 percent; 



13 

of its exports of fish. (See P. G. Vigness, "Neu- 
trality of Norway and the World War"; Amry 
Vandenbosch, "Neutrality of the Netherlands Dur- 
ing the World War ' ' ; Harvard Draft Code, ' ' Rights 
and Duties of Neutral States in Naval and Aerial 
War"; American Journal of International Law, 
Supplement, July 1939, pp. 235-245; Harvard 
Draft Code, "Competence of Courts in Regard to 
Foreign States"; American Journal of Interna- 
tional Law, Supplement 1932, Comments on Arti- 
cles 12, 26, and 27; Friedmann, op. cit., and Preuss 
op. cit.) 

VISIT AND SEARCH OF PUBLIC VESSELS 

In the light of the evidence previously cited to 
the effect that State-owned vessels engaged in com- 
mercial enterprise are not to be regarded as im- 
mune from jurisdiction, it is apparent that a 
tanker like the Cora, though owned by a company 
in which the State owns a majority of the shares, 
cannot claim immunity from visit and search. It 
is to be treated as a private vessel. In the early 
spring of 1940 warships of Great Britain inter- 
cepted Soviet vessels in the Pacific Ocean, visited 
and searched them, and ordered them into port for 
prize-court adjudication. The Government of the 
Soviet Union allegedly protested that these ships 
were immune from visit and search because of their 
State ownership. Such a claim was inconsistent 
with previous Soviet policy in regard to its mer- 
chant marine, and evidently was not taken seri- 
ously by any of the parties concerned at the time. 
Exemption from the exercise of belligerent rights 
of w r ar for State-owned merchant craft is unnec- 



14 

essary and would be asking an unwarranted sacri- 
fice from a belligerent naval power. 

That State craft are not all entitled to the im- 
munities accorded warships has been recognized 
in international conventions : 

Convention on Commercial Aviation, Havana 1928, Arti- 
cle III (b) : All state aircraft other than military, naval, 
customs and police aircraft shall be treated as private air- 
craft and as such shall be subject to all the provisions of the 
present convention. 

Hague Convention XI, Relating to the Exercise of the 
Eight of Capture in naval war. Article II : The inviolabil- 
ity of postal correspondence does not exempt a neutral mail 
ship from the laws and customs of maritime war as to neu- 
tral merchant ships in general. The ship, however, may not 
be searched except whenever absolutely necessary, and then 
only with as much consideration and expedition as possible. 

THE "ALTMARK" CASE 

On February 16th, 1940, the British destroyer 
Cossack forced the German vessel Altmark into 
a Norwegian fjord and removed three-hundred-odd 
captives who were on board. The Altmark had 
formerly been a merchant tanker but at the time of 
the incident was a naval auxiliary flying the Ger- 
man official service flag. Although the Altmark 
case deals with a neutral State's duties in regard 
to belligerent ships in territorial waters, and 
though it does not concern belligerent rights over 
neutral public ships on the high seas, it is of con- 
siderable general importance and involves inter- 
esting problems concerning jurisdiction over ves- 
sels, both public and private, within the territorial 
limits. The British government and some inter- 
national lawyers charged that Norway had failed in 
its duties and that it should not have allowed the 



15 

Altmark to transport prisoners along its coast. 
More careful examination of the situation, how- 
ever, indicates that Norway had no obligation to 
halt the Altmark, to force it to leave, to intern it, 
or to release the prisoners. Following is the opin- 
ion of Prof. Edwin Borchard of Yale University : 

As a public ship the Altmark was free from visit and in- 
spection except possibly to verify her conformity with Nor- 
way's neutrality regulations. Norway's jurisdiction over the 
vessel was at best extremely limited and under no circum- 
stances would it seem that Norway was privileged to break 
the relation between the master and the captives on board 
and release them. Even if the ship had anchored or docked 
in Bergen, that legal relationship could not have been legally 
broken. In the Franco-Prussian War, a French war vessel 
entered the Firth of Forth with German prisoners on board, 
whereupon the German Consul at Leith asked Great Britain 
to release the prisoners in accordance with Britain's alleged 
neutral duty. The British government replied that the 
French warship was privileged to enter and to remain for a 
limited time, that the prisoners on board did not become free, 
that while on board they were under French jurisdiction, and 
that the neutral authorities had no right to interfere with 
them. In an earlier case arising during the Crimean War, 
Attorney General Cushing in an exhaustive opinion held that 
a United States court had no power to release the captive sea- 
men on board the Kussian vessel Sitka brought into San Fran- 
cisco as a prize by a British man-of-war. 

Nor is it material what the Altmark 's papers showed, pro- 
vided she was a public vessel. Even if she were a merchant 
vessel, Norway as a coastal state had no power to punish her 
for carrying false papers, or, in either event, for the false 
character of the captain's answers to the questions put. The 
British seamen were not technically prisoners of war be- 
cause they were not part of the armed forces of a belligerent 
nor ancillary thereto. Even if it should be said that the Alt- 
mark was violating international law by taking them to Ger- 
many instead of leaving them at the nearest port, it was 
hardly Norway's duty to correct the violation. The term 



16 

"prison ship" is not a term of art and hardly clarifies the legal 
position. The Altmark would seem to have been under no 
duty to account to Norway for what she was carrying, nor 
was Norway bound to inquire whether she was passing 
through territorial waters to escape capture. Such a motive 
which was doubtless accurate, does not diminish the privilege 
of using the territorial waters for transit (American Journal 
of International Law, April 1940, pp. 292-294). 

SEIZURE FOR CONTRABAND 

Though there is no binding general international 
agreement as to what articles should properly be 
considered contraband, the seizure of both the Cora 
and the Elrod appears legitimate. Oil and gaso- 
line are now of the utmost importance in warfare 
and may rightly be considered to be absolute con- 
traband. The basis for the seizure of the Cora, 
which was carrying oil to a State adjacent to a 
belligerent, was that of continuous voyage, a doc- 
trine recognized as applicable to absolute contra- 
band in the unratified Declaration of London of 
1909 and extensively invoked in the war of 1914-18 
and in the war which began in September 1939. 
The law is therefore clear in regard to the Cora 
but is by no means as definite in regard to the 
extensions of the doctrine of continuous voyage 
in both great wars. In these two conflicts the Al- 
lied States never proclaimed a formal blockade of 
Germany but relied upon contraband, continuous 
voyage, and reprisal orders which carried the doc- 
trine to almost unrecognizable lengths. 



17 
CONTRABAND LISTS OF THE 1939-40 WAR 

Great Britain: 



"Schedule I 



"Absolute Contraband 



"(a) All kinds of arms, ammunition, explosives, chemi- 
cals, or appliances suitable for use in chemical warfare and 
machines for their manufacture or repair ; component parts 
thereof ; articles necessary or convenient for their use ; mate- 
rials or ingredients used in their manufacture; articles nec- 
essary or convenient for the production or use of such mate- 
rials or ingredients. 

"(b) Fuel of all kinds; all contrivances for, or means of, 
transportation on land, in the water or air, and machines 
used in their manufacture or repair; component parts 
thereof; instruments, articles, or animals necessary or con- 
venient for their use; materials or ingredients used in their 
manufacture; articles necessary or convenient for the pro- 
duction or use of such materials or ingredients. 

"(c) All means of communication, tools, implements, in- 
struments, equipment, maps, pictures, papers and other arti- 
cles, machines, or documents necessary or convenient for car- 
rying on hostile operations ; articles necessary or convenient 
for their manufacture or use. 

"(d) Coin, bullion, currency, evidences of debt; also 
metal, materials, dies, plates, machinery, or other articles 
necessary or convenient for their manufacture. 

"Schedule II 

"Conditional Contraband 

" (e) All kinds of food, foodstuffs, feed, forage, and cloth- 
ing and articles and materials used in their production." 

(The Department of State Bulletin, September 16, 1939, 
Vol. I, No. 12, Publication 1377, pp. 250-251.) 



18 
Germany: 



"Article 1 



"The following articles and materials will be regarded as 
contraband (absolute contraband) if they are destined for 
enemy territory or the enemy forces : 

"One. Arms of all kinds, their component parts and their 
accessories. 

"Two. Ammunition and parts thereof, bombs, torpedoes, 
mines and other types of projectiles; appliances to be used 
for the shooting or dropping of these projectiles ; powder and 
explosives including detonators and igniting materials. 

"Three. Warships of all kinds, their component parts and 
their accessories. 

"Four. Military aircraft of all kinds, their component parts 
and their accessories; airplane engines. 

"Five. Tanks, armored cars and armored trains; armor 
plate of all kinds. 

"Six. Chemical substances for military purposes; appli- 
ances and machines used for shooting or spreading them. 

"Seven. Articles of military clothing and equipment. 

"Eight. Means of communication, signaling and military 
illumination and their component parts. 

"Nine. Means of transportation and their component parts. 

"Ten. Fuels and heating substances of all kinds, lubricating 
oils. 

"Eleven. Gold, silver, means of payment, evidences of 
indebtedness. 

"Twelve. Apparatus, tools, machines and materials for the 
manufacture or for the utilization of the articles and products 
named in numbers one to eleven. 

"Article 2 

"Article one of this law becomes article 22 paragraph one 
of the Prize Law Code. 

"This law becomes effective on its promulgation." 

The Government of the Reich on September 12, 1939, made 
an announcement relating to conditional contraband which 
read in part: 

"The following is accordingly announced : 



19 

"The following articles and materials will be regarded as 
contraband (conditional contraband) subject to the condi- 
tions of article 24 of the Prize Law Code of August 28, 1939 
(Reichsgesetzblatt part one page 1585) : 

"Foodstuffs (including live animals) beverages and tobacco 
and the like, fodder and clothing ; articles and materials used 
for their preparation or manufacture. 

"This announcement becomes effective on September 14, 
1939." 

(The Department of State Bulletin, September 23, 1939, 
Vol. I, No. 13, Publication 1380, p. 285.) 

France: 

"The Government of the French Republic makes known 
to interested parties, that, during the course of hostilities, 
it will consider as articles of contraband the following 
objects : 

"Absolute Contraband 

"(a) All sorts of arms, munitions, explosives, chemical 
products or apparatuses which may be utilized in chemical 
warfare, and machinery intended for their manufacture or 
repair; component parts of these articles, articles necessary 
or appropriate for their utilization; substances or ingredi- 
ents employed in their manufacture; articles necessary or 
appropriate for the production or utilization of these sub- 
stances or ingredients; 

"(b) Combustibles of all sorts; all apparatuses or means 
permitting of the transportation on land, water or in the 
air, and all machinery utilized for their manufacture or 
repair; component parts of these articles; instruments, ar- 
ticles or animals necessary or appropriate for their employ- 
ment, substances or ingredients untilized in their manufac- 
ture; articles necessary or appropriate for the production 
or employment of the said substances or ingredients ; 

"(c) All means of communication, tools, implements, in- 
struments, equipment, geographic maps, pictures, papers and 
other articles, machinery or documents necessary or appro- 
priate for the conduct of enemy operations, articles neces- 
sary or appropriate for their manufacture and their 
employment ; 



20 

"(d) Coins, gold and silver ingots, bank notes, bonds, as 
well as metals, materials, specie, metal sheets, machinery or 
other articles necessary or appropriate for their manu- 
facture. 

"Conditional Contraband 

"All sorts of foodstuffs, provisions, products for feeding 
animals, fodder, clothing, as well as objects and material 
utilized for their production." 

(The Department of State Bulletin, November 18, 1939, 
Vol. I, No. 21, Publication 1405, p. 555.) 

AMERICAN POSITION CONCERNING BRITISH 

"BLOCKADE" 

Note of December 8, 1939: 

"My Government has noted with regret that by its Order- 
in-Council of November 28, the British Government has 
undertaken to intercept all ships and all goods emanating 
from German ports, and ports in territory under German 
occupation, after December 4, 1939, and all ships from what- 
ever port sailing after December 4 having on board goods of 
German origin or German ownership, and to require that 
such goods be discharged in a British or allied port and 
placed in the custody of the marshal of the prize court. This 
order if applied literally would subject American vessels to 
diversion to British ports if they are found to be carrying 
goods of German origin or German ownership, regardless of 
the place of lading of such goods or the place of destination 
and regardless of the ownership of the goods at the time that 
the vessel is intercepted, the words 'enemy origin', according 
to the order, covering any goods having an origin in any ter- 
ritory under enemy control, and the words 'enemy property' 
including goods belonging to any person in any such 
territory. 

"Interference with neutral vessels on the high seas by bel- 
ligerent powers must be justified upon some recognized bel- 
ligerent right. It is conceded that a belligerent government 
has a right to visit and search neutral vessels on the high seas 
for the purpose of determining whether the vessel is carrying 
contraband of war to an opposing belligerent, is otherwise 



21 

engaged in some form of unneutral service, or has broken or 
is attempting to break an effective blockade of an enemy port 
and, if justified by the evidence, to take the vessel into port. 

"American vessels are at the present time prohibited by 
our domestic law from engaging in any kind of commerce on 
the west coast of Europe between Bergen, Norway, on the 
north, and the northern part of Spain on the south. This 
prohibition applies to neutral as well as to belligerent ports 
within that area. Consequently, justification for interfer- 
ing with American vessels or their cargoes on grounds of 
breach of blockade can hardly arise. Likewise the question 
of contraband does not arise with respect to goods en route 
from Germany to the United States. 

"Whatever may be said for or against measures directed by 
one belligerent against another, they may not rightfully be 
carried to the point of enlarging the rights of a belligerent 
over neutral vessels and their cargoes, or of otherwise penalis- 
ing neutral states or their nationals in connection with their 
legitimate activities. 

"Quite apart from the principles of international law thus 
involved, the maintenance of the integrity of which cannot 
be too strongly emphasized at this time when a tendency to- 
ward disrespect for law in international relations is threaten- 
ing the security of peace-loving nations, there are practical 
reasons which move my Government to take notice of the 
Order-in-Council here in question. In many instances orders 
for goods of German origin have been placed by American 
nationals for which they have made payment in whole or in 
part or have otherwise obligated themselves. In other in- 
stances the goods purchased or which might be purchased can- 
not readily, if at all, be duplicated in other markets. These 
nationals have relied upon such purchases or the right to pur- 
chase for the carrying on of their legitimate trade, industry 
and professions. In these circumstances, the British Govern- 
ment will readily appreciate why my Government cannot view 
with equanimity the measures contemplated by the Order-in- 
Council, which, if applied, cannot fail to add to the many in- 
conveniences and damages to which innocent trade and com- 
merce are already being subjected. 



22 

"My Government is, therefore, under the necessity of re- 
questing that measures adopted by the British Government 
shall not cause interference with the legitimate trade of its 
nationals and of reserving meanwhile all its rights and the 
rights of its nationals whenever, and to the extent that they 
may be infringed." 

(Department of State Bulletin, December 9, 1939, Vol. I, 
No. 24, Publication 1413, pp. 651-652.) 

Aide Memoir e, January 20, 1940: 

"This Government feels constrained to express its serious 
concern at the treatment by the British authorities of Ameri- 
can shipping in the Mediterranean area, and particularly 
at Gibraltar. It has already made clear its position as 
regards the legality of interference by the British Govern- 
ment with cargoes moving from one neutral country to 
another, in its Ambassador's Note number 1569 of November 
20, 1939. In addition, it now regrets the necessity of being 
forced to observe not only that British interference, carried 
out under the theory of contraband control, has worked a 
wholly unwarrantable delay on American shipping to and 
from the Mediterranean area; but also that the effect of 
such action appears to have been discriminatory. 

"Since ample time has elapsed to permit the setting up of 
an efficient system of control, it would seem that the present 
situation can no longer be ascribed to the confusion attend- 
ant on early organization difficulties. 

"From information reaching this Government it appears 
that American vessels proceeding to neutral ports en route 
to or from ports of the United States have been detained 
at Gibraltar for periods varying from nine to eighteen 
days; that cargoes and mail have been removed from such 
ships; that official mail for American missions in Europe 
has been greatly delayed; that in some instances American 
vessels have been ordered to proceed, in violation of Ameri- 
can law, to the belligerent port of Marseille to unload car- 
goes and there to experience further delays. It is further 
reported that cargoes on Italian vessels receive more favor- 
able consideration that similar or equivalent cargoes carried 
by American ships, and that Italian vessels are permitted 



23 

to pass through the control with far less inconvenience and 
delay. 

"There is attached a list of American vessels en route to 
neutral ports detained by the British Contraband Control 
during the period Nov. 15 to Dec. 15, from which it will be 
seen that the average delay imposed has amounted to ap- 
proximately 12.4 days. From information in possession of 
this government, it is established that Italian vessels de- 
tained during the same period were held for an average 
delay of only 4 days. 

"This government must expect that the British Govern- 
ment will at least take suitable and prompt measures to 
bring about an immediate correction of this situation. It 
will appreciate receiving advices that the situation has been 
corrected." 

ENCLOSURE: 

List of American vessels, as stated. 

Department of State, 
Washington, Jan. SO, 1940. 

American vessels reported to the Department of State to 
have been detained by the British Blockade Control in the 
Mediterranean for examination of papers and cargo, Nov. 
15-Dec. 15, 1939: 

S. S. Express — (Nov. 12-21), ten days. American Export 
Line — general cargo — detained by the British authorities 
at Malta. Held pending receipt of instructions from the 
British Government. Had remaining on board 420 tons of 
general cargo for Greece, Turkey and Rumania. Free to 
depart Nov. 21 in view of declaration furnished. Departed 
Nov. 23. 

S. S. Nishmaha — (Nov. 11-23) thirteen days. Lykes 
Brothers Steamship Company — cotton, paraffin, beef cas- 
ings — detained by the British authorities at Gibraltar. 
Large number of items of cargo seized. Free to depart 
after Nov. 17 on captain's undertaking to unload at Bar- 
celona cargo for that port, and to proceed to Marseille for 
unloading seized items. 

S. S. Examiner — (Nov. 17-Dec. 4) eighteen days. Ameri- 
can Export Line — general cargo, oil, grease, rubber tires r 



24 

cotton goods — detained by the British authorities at Gibral- 
tar. Eleven bags first-class mail removed. 

S. S. Excambion — (Nov. 20-27) eight days, American 
Export Line — general cargo, oil, films — detained by British 
authorities at Gibraltar. 

S. S. Exmouth — (Nov. 22-Dec. 5) fourteen days. Ameri- 
can Export Line; — general cargo— detained by British 
authorities at Gibraltar. 

S. S. Extavia — (Nov. 29-Dec. 14) sixteen days. American 
Export Line — mixed cargo — detained by the British author- 
ities at Gibraltar. Ship free to depart on giving Black 
Diamond guarantee in respect to one item of cargo. 

S. S. Exochorda — (Dec. 5-13) nine days. American Ex- 
port Line — mixed cargo, burlap, tinplate, tobacco, oil — 
detained by the British authorities at Gibraltar. 

S. S. Exmoor — (Dec. 7-15) nine days. American Export 
Line — mixed cargo — detained by the British authorities at 
Gibraltar. 

S. S. Explorer — (Dec. 9-23) — fifteen days. American 
Export Line — mixed cargo — detained by the British 
authorities at Gibraltar. 

(Department of State Bulletin, January 27, 1910, Vol. II, 
No. 31, Publication 1428, pp. 93-94.) 

THE "CITY OF FLINT" 

On October 9th, 1939, the American merchant 
steamer City of Flint was visited and searched by 
a German cruiser at an estimated distance of 1,250 
miles from New York. The Flinty carrying a 
mixed cargo destined for British ports, was seized 
by the German cruiser on grounds of contraband, 
and a German prize crew was placed on board. 
Between the 9th of October and the 4th of Novem- 
ber 1939 the American ship was taken first to the 
Norwegian port of Tromsoe, then to the Russian 
city of Murmansk, and then after two days in the 
last-named port, back along the Norwegian coast 
as far as Haugesund where the Norwegian author- 



25 

ities on November 4th released the Flint on the 
grounds of the international law rules contained 
in articles XXI and XXII of Hague Convention 
XIII of 1907. Prizes may be taken to a neutral 
harbor only because of an " inability to navigate, 
bad conditions at sea, or lack of anchors or sup- 
plies." The entry of the Flint into Haugesund on 
November 3 was not justified by the existence of 
any one of these conditions. The original visit 
and search and seizure of the Flint by the German 
warship, the placing of the prize crew on board, 
and the conduct of that crew were apparently all 
in accord with law. The stay in the harbor of 
Murmansk, however, was of doubtful legality. No 
genuine distress or valid reason for refuge in a so- 
called neutral harbor is evident from the examina- 
tion of the facts. Perhaps the Germans and the 
Russians hoped to invoke the provisions of Article 
XXIII of Hague Convention XIII which author- 
izes a neutral power to permit "prizes to enter its 
ports and roadsteads * * * when they are 
brought there to be sequestrated pending the deci- 
sion of a prize court." This article has never been 
accepted generally as a part of international law 
and was specifically rejected by the United States 
in ratifying the convention. The situation was 
complicated by the equivocal position of Soviet 
Russia which was not a neutral in the traditional 
sense, in the European war. Under strict rules 
of international law the U. S. S. R. was derelict 
in regard to its neutral duties and should not have 
permitted the Flint either to enter Murmansk or to 
find any sort of a haven there. 

247670—40 3 



26 

NORWEGIAN STATEMENT ON THE "CITY OF 

FLINT" 

The Foreign Office finds it correct to give the complete ac- 
count of how the German prize, City of Flinty has been han- 
dled by Norwegian authorities. 

The City of Flint is an American vessel which, with a Ger- 
man prize crew aboard, came for the first time to Tromsoe on 
Oct. 20 and asked for fuel and water. Permission was given 
in accordance with Norwegian neutrality rules of 1928 based 
upon the international agreements about neutrality duties in 
maritime warfare of Oct. 18, 1907 (The Hague agreement 
Number 13). 

The Flinty however, was order d to remain some hours long- 
er than necessary for taking on fuel and water. Thus it 
emerged that it had British citizens aboard. Crews had been 
taken off one or more vessels which German warships sank 
and these British citizens, according to a request from the 
prize ship, were put ashore at'Tromsoe. 

The City of Flint left Tromsoe on Oct. 21 and, because the 
stay there had been prolonged according to the Norwegian 
order, the ship obtained permission to continue to sail within 
Norwegian territories for twenty-four hours reckoned on the 
time of departure from Tromsoe. 

This was in accord with Norwegian neutrality rules. 

On the following day, which was Sunday, the German 
Charge d'Affaires at Oslo said his government found it in- 
correct that the stay within Norwegian territorial waters be 
limited this way and asked that the ship be allowed to con- 
tinue within Norwegian territorial waters. 

The Foreign Office answered on Oct. 25 by citing the neu- 
trality rules. The German charge d'affaires then came back 
with new overtures on the following Sunday, Oct. 29. 

The German Government maintained the Norwegian 
Government had supposed incorrectly that the prize should 
be treated in the same way as a warship and the German 
Government was of the opinion that, according to The 
Hague agreement of 1907, the prize could remain in transit 
in Norwegian territorial waters without a time limit. 

The Norwegian Foreign Minister answered the next day 
that as far as the question about transit of prizes and war- 



27 

ships, they were placed under the same footing in The 
Hague agreement, but in this case there had not been a 
question about transit but about a stay in a neutral port 
and about the leaving of the port. 

On the question about the transit in neutral waters, the 
Foreign Minister declared himself in agreement with the 
German Government. 

This last question became effective that same day. 

Two hours before the Foreign Minister saw the German 
charge d'affaires, the City of Flint had anew entered the 
harbor of Tromsoe, following the waters from the north 
from Murmansk. This time the vessel did not stop but 
only asked permission to continue south. There were no 
hindrances and the vessel continued southward in Norwe- 
gian waters. 

When this became known, the possibility arose that an- 
other warfaring power would try to stop the ship on its 
way. To control the boat as long as it was in Norwegian 
territory and to safeguard Norway's neutrality, the Nor- 
wegian admiral in command ordered a Norwegian naval 
ship to accompany the City of Flint southward. 

Farther south, the boat was met by the Olav Trygvasson, 
which took over the watch. 

Outside of Sogn (a fiord north of Bergen) , the chief of the 
City of Flint reported a sick man aboard and said that he 
should be permitted to stop at Haugesund to get the man 
under medical treatment. 

A doctor was sent aboard from the Olav Trygvasson and 
when he had seen the sick man had only an insignificant 
wound in the leg, the chief of the City of Flint was in- 
formed he could not for this reason be permitted to anchor 
at Haugesund. The prize chief agreed. 

The City of Flint, despite this, anchored at Haugesund 
on Nov. 3 in the evening and when the captain of the 
Olav Trygvasson went aboard and asked why he put at 
anchor, the prize chief answered "according to orders from 
in v government." Later he said he wanted to confer with the 
German Consul at Haugesund. 

The Hague Agreement of 1907, which had been ratified by 
both tlie German and Norwegian Governments and which 



28 

had been referred to expressly by the German Government 
in connection with the City of Flinfs stay at Tromsoe, states 
in Article XXI that prizes can be taken to a neutral harbor 
owing "only to the inability to navigate, bad conditions at 
sea. or lack of anchors or supplies." 

None of these conditions was present. 

If none of the conditions is present, Article XXII Bays 
"the neutral power must give free the prize which has been 
brought into harbor." 

In accordance with this, the City of Flint during the night 
was taken out of the prize commander's power and was given 
free while the prize crew was interned temporarily on the 
01 av Trygvasson. 

Early next morning, the City of Flint left Haugesund 
On that same morning, Nov. 4, the German charge d'af- 
faires at Oslo delivered to the Norwegian Foreign Minis- 
ter a protest against the way in which Norwegian authorities 
had acted in connection with the City of Flint. 

The Norwegian Foreign Minister on the spot showed the 
protest was without reason and that Norwegian authorities 
acted exactly in accordance with The Hague agreement rules. 
The German Minister demanded the City of Flint be held 
back as long as the case was discussed between the two gov- 
ernments, but the Norwegian Government found no legal base 
on which to take such steps against the American boat. 

The whole action in this matter has been explained by the 
Norwegian Government in a note which today has been 
delivered to the German charge d'affaires. 

(New York Times, November 6, 1939.) 

TREATMENT OF THE UNITED STATES MAILS 

As in the war of 1914^-18, an exchange of notes 
took place during the Winter of 1939-40 between 
the Governments of the United States and Great 
Britain on the subject of seizure and censorship 
of the mails. The American Government admitted 
that the British had a right to censor private mails 
which normally passed through British ports or 
territory, but denied the right of Great Britain to 



29 

interfere with American mails on neutral ships on 
the high seas or on ships which entered British 
ports involuntarily. The United States Govern- 
ment based its case, just as it did 23 years before, 
on Hague Convention XI, which specified that 
postal correspondence is inviolable on the high seas. 
During the war of 1914-18 the American Govern- 
ment had agreed that only " genuine" correspond- 
ence was immune from search and had conceded 
that where mail was used as a cover for the ship- 
ment of contraband articles it was no longer "gen- 
uine" and so no longer inviolable. This left open 
the question : How was the belligerent (Great Brit- 
ain) to decide or to find out whether the mail was 
truly ' ' genuine ' ' or not % The practical answer was 
that all was subject to opening because, in effect, 
the belligerent had to open all mail in order to find 
out whether it ought to have opened the mail ! The 
position of the American Government was thus not 
a particularly strong one when it came to protest- 
ing mail censorship during the war which began in 
September 1939. The British in their reply were 
quick to point out that the United States in 1916 
had already "admitted in principle the right of the 
British authorities to examine mail bags with the 
view to ascertaining whether they contained con- 
traband." The strong wording of the Hague Con- 
vention has thus been emasculated in practice and 
all correspondence, in fact, seems to be subject to 
belligerent interference. 

American note, January 2, 1940: 

"The United States Department of State has been advised 
that British authorities have removed from British ships and 
from American and other neutral ships American mails ad- 



30 

dressed to neutral countries and have opened and censored 
-ealed letter mail sent from this country. 

"The following cases among others have come to the De- 
partment of State's attention: On October 10 the British 
authorities took from the steamship Black Gull 293 sacks of 
American mail addressed to Rotterdam and ten sacks ad- 
dressed to Antwerp. On October 12 authorities in the Downs 
removed from the Zaandam 77 sacks of parcel post, 33 sacks 
of registered mail, and 156 sacks of ordinary mail addressed 
to the Netherlands, as well as 65 sacks of ordinary mail ad- 
dressed to Belgium, four to Luxemburg, three to Danzig and 
259 to Germany. On October 12 authorities at Weymouth 
removed from the Black Tern 94 sacks of American mail ad- 
dressed to Rotterdam, 81 to Antwerp and 184 to Germany. 
On October 24 authorities at Kirkwall removed from the 
Aztrid-Thorden 468 bags mail from Xew York to Gothen- 
burg and 18 bags from Xew York to Helsinki. Many indi- 
vidual instances of British censorship of American mails 
have come to the Department's attention. 

"This Government readily admits the right of the British 
Government to censor private mails originating in or destined 
to the United Kingdom or private mails which normally pass 
through the United Kingdom for transmission to their final 
destination. It cannot admit the right of the British author- 
ities to interfere with American mails on American or other 
neutral ships on the high seas nor can it admit the right of the 
British Government to censor mail on ships which have in- 
voluntarily entered British ports. 

"The eleventh Hague Convention recognizes that postal 
correspondence of neutrals or belligerents is inviolable on the 
high seas. The United States Government believes also that 
the same rule obtains regarding such correspondence on ships 
which have been required by British authorities to put into a 
British port. This view is substantiated by Article 1 of the 
Convention which stipulates: 'If the ship is detained, the 
correspondence is forwarded by the captor with the least pos- 
sible delay.' The United States Government regards as par- 
ticularly objectionable the practice of taking mails from 
vessels which ply directly between American and neutral 
European ports and which through some form of duress are 



31 

induced to call at designated British control bases. This is 
believed to be a clear violation of the immunity provided by 
the Hague Convention. 

"The United States Government feels compelled to make 
a vigorous protest against the practices outlined above and to 
express the hope that it will receive early assurances that they 
are being discontinued." 

(The Department of State Bulletin, January 6, 1940, Vol. 
II, No. 28, Publication 1422, p. 3.) 

British reply, January 17, 1940: 

"ONE. I have the honour to invite reference to your note 
No. 1730 of the 27th December in which you drew attention to 
certain specific instances of the removal from British, United 
States and other neutral ships, and of the examination by 
the British censorship authorities, of United States mail ad- 
dressed to neutral countries and of sealed letter mail des- 
patched from the United States. You also stated that your 
Government admitted the right of His Majesty's Govern- 
ment to censor private mails originating in or destined for 
the United Kingdom or private mails which normally pass 
through the United Kingdom for transmission to their final 
destination, but that in view of The Hague Convention No. 
11, your Government could not admit the right of the 
British authorities to interfere with United States mail in 
United States or other neutral ships on the high seas or to 
censor mail in ships which have involuntarily entered British 
ports. 

"TWO. His Majesty's Government in the United King- 
dom are happy to note that there is substantial agreement 
between them and the United States Government as regards 
the rights of censorship of terminal mails and that the only 
point of difference seems to lie in the interpretation of The 
Hague Convention in regard to correspondence in ships 
which are diverted into British ports. 

"THREE. The view of His Majesty's Government as re- 
gards the examination of 'mail in ships on the high seas or 
involuntarily entering British ports is that the immunity 
conferred by Article I of The Hague Convention No. 11, 
which in any case does not cover postal parcels, is enjoyed 



32 

only by genuine postal correspondence, and that a belligerent 
is therefore at liberty to examine mail bags and, if necessary, 
their contents in order to assure himself that they constitute 
such correspondence and not articles of a noxious character 
such as contraband. This view must, in the opinion of His 
Majesty's Government, be regarded as established by the 
practice during the war of 1914-1918, when none of the 
belligerents accepted the view that Article I of this conven- 
tion constituted an absolute prohibition of interference with 
mail bags, and the general right to search for contraband 
was regarded as covering a full examination of mails for 
this purpose. Reference to the correspondence between the 
United States Government and His Majesty's Government 
in 1916 shows that at that date the United States admitted 
in principle the right of the British authorities to examine 
mail bags with a view to ascertaining whether they con- 
tained contraband. 

"FOUR. It will be appreciated that the letter post as well 
as the parcel post can be used to convey contraband; and 
that even though letters may be addressed to a neutral 
country their ultimate destination may be Germany. For 
instance, the letter mails may be used to convey securities, 
cheques or notes or again they may be used to send indus- 
trial diamonds and other light contraband. It must be 
remembered that the limit of size, weight and bulk of 
letters sent is sufficient to allow the passage of contraband 
of this nature which may be of the utmost value to the 
enemy. 

"It was presumably for this reason that the United States 
Government in their note of the 24th May, 1916, stated 
that "The Government of the United States is inclined to 
the opinion that the class of mail matter which includes 
stocks, bonds, coupons and similar securities is to be re- 
garded as of the same nature as merchandise or other 
articles of property and subject to the same exercise of 
belligerent rights. Money orders, cheques, drafts, notes and 
other negotiable instruments which may pass as the equiva- 
lent of mone}- are, it is considered, also to be classed as 
merchandise. " 



33 

"It is clear that in the case of merchandise His Majesty's 
Government are entitled to ascertain if it is contraband 
intended for the enemy or whether it possesses an innocent 
character, and it is impossible to decide whether a sealed 
letter does or does not contain such merchandise without 
opening it and ascertaining what the contents are. It would 
be difficult to prevent the use of the letter post for the 
transmission of contraband to Germany, a use which has 
been made on an extensive scale, without submitting such 
mail to that very examination to which the United States 
Government is taking objection. 

"FIVE. The Allied governments in their correspondence 
with the United States Government in 1916 also had occa- 
sion to demonstrate the extent to which the mails were being 
employed for the purpose of conveying contraband articles 
to Germany. The position in this respect is identical today, 
and, in this connection, I have the honor to invite reference 
to an aide memoire dated the 23d November, 1939, which 
was communicated to a member of your staff and in which 
clear evidence was given of the existence of an organized 
traffic in contraband on a considerable scale between German 
sympathizers in the United States and Germany through 
the mail. 

"An article in a newspaper published in German in the 
United States, which was handed to him at the same time, 
showed that an organization existed in United States terri- 
tory for the purpose of facilitating this traffic. 

"SIX. Quite apart from transmission of contraband the 
possibility must be taken into account of the use of the letter 
post by Germans to transmit military intelligence, to promote 
sabotage and to carry on other hostile acts. It is in accord- 
ance with international law for belligerents to prevent intel- 
ligence reaching the enemy which might assist them in hos- 
tile operations. 

"SEVEN. I may add that in another respect, namely, the 
destruction of mails on board ships sunk by the illegal 
methods of warfare adopted by Germany, the situation today 
is identical with that which existed in the war of 1914^1918. 
Between the 3d September, 1939, and the 9th January, 1940, 
the German naval authorities have destroyed, without pre- 



34 

vious warning or visit, in defiance of the rules of war and of 
obligations freely entered into, the S. S. Yorkshire, the S. S. 
Dunbar Castle, the S. S. Simon Bolivar and the S. S. Teru- 
kuni Maru, all of which are known to have been carrying 
mails to or from neutral countries, with as little regard for 
the safety of the neutral correspondence on board as for the 
lives of the inoffensive passengers and crew. Yet His Maj- 
esty's Government are not aware that any protest regarding 
this destruction of postal correspondence has been made to 
the German Government. 

"EIGHT. In contrast to this reckless and indiscriminate 
destruction of neutral property, the examination conducted 
by His Majesty's Government of the mails which are under 
discussion does not involve innocent mail being either con- 
fiscated or destroyed. In accordance with the terms of The 
Hague Convention, mail found in ships which have been 
diverted to British ports is forwarded to its destination as 
soon as possible after its innocent nature is established. In 
no case is genuine correspondence from the United States 
seized or confiscated by His Majesty's Government. 

"NINE. For the above reasons His Majesty's Government 
find themselves unable to share the views of the United 
States Government that their action in examining neutral 
mail in British or neutral shipping is contrary to their 
obligations under international law. They are, however, 
desirous of conducting this examination with as little incon- 
venience as possible to foreign nations, and you may rest 
assured that every effort has been and will be made to reduce 
any delays which may be occasioned by its enforcement. 

"If the United States Government have occasion to bring 
any specific complaints to the notice of His Majesty's Gov- 
ernment concerning delays alleged to be due to the examina- 
tion of these mails, His Majesty's Government will be happy 
to examine these complaints in as accommodating and 
friendly a spirit as possible. While the task of examination 
is rendered heavy as a result, it is believed that arrangements 
which have been made to deal with this correspondence will 
insure that all genuine correspondence will reach its desti- 
nation in safety and with reasonable dispatch." 

(The Department of State Bulletin, January 27, 1940, 
Vol. II, No. 31, Publication 1428, pp. 91-93.) 



35 



CAPTURE, ESCORT, AND CONTROL BY 
WARSHIP AND AIRPLANE 



In Situation I the Cruiser Bax of State B did 
not place a prize crew on board the Elrod ; instead 
an airplane was sent out by the Bax " periodically" 
to make certain that the Elrod did not deviate. 
The issue is not one of deviation before visit and 
search, a problem which was extensively considered 
by the Commission of Jurists in 1923 and in Naval 
War College International Law Situations in 1930 
and 1938. Rather, the question is one of deviation 
after capture. Under international law the com- 
mander of a belligerent cruiser which has cap- 
tured an enemy merchantman or seized a neutral 
vessel has the option of placing a prize crew on 
board or of escorting the ship into port. What 
is crucial in such a situation is that the captured or 
seized vessel be under the effective control of the 
belligerent. A mere order to proceed to a speci- 
fied destination need not be obeyed by the captured 
or seized craft which is legally free to sail where 
it wishes if the control over it is no longer main- 
tained. ^?he captured ship has no right to attempt 
to escape or deviate, but if control ceases the mer- 
chant ship is at liberty./ The belligerent cruiser, 
acting as escort, or the prize crew, must operate 
in such a way as to convince the captain of the 
seized ship that he is under actual constraint. The 
question is both one of fact and of thought as to 
the fact. Objectively 'the case might be one in 
which the belligerent captor did not have the physi- 
cal force to maintain his authority but if he per- 
formed in such a way as to create a reasonable 
belief in the minds of those on board the captured 



36 

vessel that such authority could be maintained, then 
legally the belligerent would be in control. There 
is the famous story about the British steamer Ap- 
pam which was captured in 1916 by the German 
cruiser Moewe. The Germans could not spare 
many men for a prize crew, and to bolster their 
authority they told the British that they had mined 
the Appam and could blow it to bits at the slightest 
sign of insubordination. Whether the Appam was 
really mined or not, and whether the English crew 
really would have had the power to retake com- 
mand, does not change the fact that by their actions 
and tactics the Germans gave convincing evidence 
of control. 

In each case of capture and seizure examination 
has to be made into this question of control. Cata- 
gorical assertions as to the size of the prize crew 
or as to the distance between the escort and the 
escorted are impossible and useless. Instead, the 
law must employ a rule of reason, and a judicial 
authority would have to decide whether in a given 
instance adequate effort had been made by the cap- 
tor to convince the captured that he was in control. 
f>$.l sufficient authority had been made manifest to 
make plain to any sensible, rational person that he 
could not proceed freely, then legally control could 
be said to exist./ In the case at hand, the Bax sends 
out the airplane periodically. This might seem 
at first as if control existed only when the airplane 
was actually within the sight of those on board the 
Elrod. It might be argued by some that either the 
Bax or the airplane must be physically present 
every moment in order to maintain its authority, 
and it is true that on the face of it, a dangerous 
precedent might be set if such periodic visits were 



37 

too readily condoned. The rules require the bel- 
ligerent to make some effort in return for compli- 
ance on the part of the seized or captured ship; 
the law is a sensible compromise between the bel- 
ligerent's natural desire to capture a ship and to 
go on his way after merely issuing an order, and 
the merchantman's wish to break away and resume 
his normal course after capture. If the law in 
regard to control is too greatly relaxed, grave dan- 
gers may be foreseen; belligerents could capture,, 
give orders, sail after other ships and then attempt 
to penalize the vessels which it had not bothered 
to escort and which it might have reencoimtered. 
Undue advantage would thus accrue to belligerent 
warships. 

In the case of the Elrod, however, it is not abso- 
lutely certain that the Bax by means of its airplane 
is not in control. The airplane may be looked 
upon as an extension of the guns of the Bax and 
in these days of radio, a warship out of sight over 
the horizon might escort and keep control for a 
time over a merchantman which would be within 
the range of the warship's guns and would have 
reason to believe that it was not "free." If the 
airplane appeared sufficiently often, or if the war- 
ship made it clear that it was keeping watch in 
effective fashion, there would be no release from 
control. The point at issue is whether, under the 
circumstances, the airplane was around enough to 
convince the Elrod captain that he was being 
watched and controlled. How much is " enough"? 
How often is " sufficiently"? These are questions 
which the commander of a warship or the judge 
of the prize court must answer and must decide 
in terms of what is reasonable in the particular 



38 

situation. Therefore, though the action of the Bax 
is open to grave criticism, and though it may look 
like an unwarranted attempt to prevent deviation 
by means of ineffective control, it must be admit- 
ted that the use of radio and airplane demands a 
greater flexibility in the application of the old rules 
which required the actual physical presence of an 
accompanying warship. The action of the Bax 
is not necessarily illegal, and careful scrutiny of 
all the facts might reveal that there was sufficient 
evidence of control to make the ElrocVs captain 
believe that the physical might of the plane or 
warship could be exerted at any moment. 

RESUME 

It is plain that the rules of international law are 
being profoundly affected by the social and techni- 
cal developments of the present epoch. Collectiv- 
istic tendencies are forcing a reexamination of the 
fundamental postulates of neutrality, and it seems 
inevitable that adjustments must be made to per- 
mit the continuation of commerce between bellig- 
erents and neutrals despite the advance of govern- 
ments into the terrain formerly occupied by private 
enterprise alone. Likewise in matters pertaining 
to contraband, the maintenance of blockades and 
the exercise of control over captured vessels, the 
introduction of the airplane, of the radio, and of 
other devices in this new power age, raise new 
problems in regard to the application of the old 
rules. This is not to assert that changing condi- 
tions or new methods of warfare justify the aban- 
donment of former legal restraints. It does mean, 
however, that international law, like domestic law, 



39 

must keep in touch with its social, economic, and 
political environment. Law stands for order but 
it must also allow for change, and the task of adapt- 
ing rules to shifting conditions is a never-ending 
one. 

SOLUTION 

(a) State C should cancel or refuse to have the 
agreement made, though it should have the oppor- 
tunity to prove that the transaction was purely 
commercial and nonpolitical in character. The 
evidence in this case however does not seem to 
support any such contention on the part of State C. 

(b) Visit and search of the Cora by the Byron 
was legal. 

(c) The Elrod is not guilty of unneutral serv- 
ice. It is not impossible that the Elrod was legally 
under the control of the Bax. The question hinges 
upon this point: Was the airplane sufficiently in 
evidence to convince the captain of the Elrod that 
he was watched and under control ? 



Situation II 

NEUTRALITY PROBLEMS: DISTRESS, SUB- 
MARINES, AND QUALIFIED NEUTRALITY 

States U and W are at war. The United States 
is neutral and the President has invoked the Joint 
Resolution of May 1, 1937, including section 8. 
State W is a Latin- American Republic. 

(a) A commercial submarine of State U, pur- 
sued by a destroyer of State W and damaged by 
the destroyer's gunfire, arrives off an American 
port and seeks entry, claiming that it is unarmed 
and in distress. 

(h) An armed merchant vessel of State W, sail- 
ing from an American port, is torpedoed and sunk 
2% miles off the American coast by a submarine 
of State U which did not come to the surface before 
attacking. Three American citizens on board are 
drowned. In response to the American Govern- 
ment's protest over the sinking, State U replies 
that the United States cannot claim the protection 
of the customary laws because of its unneutral 
conduct. 

(c) States A, B, C, D, and E apply economic 
sanctions against State W. The latter asks the 
United States to apply the joint resolution of 
May 1, 1937, to these States on the basis of section 
lb of the joint resolution. 

What should be the legal position of the United 
States in each of the above cases ? 

247670—40 4 41 



42 

SOLUTION 

(a) The submarine should be admitted. "Wheth- 
er, after entry it should be interned or allowed to 
make repairs and depart depends upon whether 
all submarines are to be classed as warships or 
whether the American Government continues to 
recognize that some submarines can possess a gen- 
uinely commercial character. 

(b) The action of the submarine of State U is 
illegal, constitutes a violation of American neutral- 
ity, and should be protested by the United States. 
Despite its unneutral conduct in regard to Latin 
America, United States is still a neutral and en- 
titled to neutral rights, though its position is some- 
what weakened by the application of section 8 of 
the law of 1937. 

(c) The application of the provisions of the law 
of 1937 to States applying economic sanctions is a 
matter of executive discretion and not one of legal 
obligation. 

VESSELS IN DISTRESS 

Both domestic and international law make excep- 
tions for force majeure. Whatever the rules or 
prohibitions may be, ships in distress are given 
asylum and are exempted from the usual require- 
ments as to entry or from any special bans or pro- 
hibitions. As was said in the Harvard Draft Code 
on Territorial Waters, American Journal of Inter- 
national Law, Supplement 1929, pp. 299-300 : 

An exemption clearly ought to be made where the vessel 
enters territorial waters in distress or because of force ma- 
jeure or where a vessel having entered the marginal sea for 
purposes of innocent passage, the passage is there broken 



43 

because of distress or force majeure. In such cases, the 
vessel should be immune from all penalties which might 
otherwise have been incurred by reason of its presence in 
territorial waters. Such penalties would include all penal 
forfeitures, confiscations, and criminal liabilities which the 
littoral state might impose on the vessel, its cargo, or the 
persons on board. 

Nevertheless, a vessel entering territorial waters in distress 
may not wholly ignore the local jurisdiction. For example, 
if the ship has required salvage assistance, the salvor may 
sue for his compensation. Also, if the vessel or those on 
board commit an offense against the local law subsequent 
to the entry in distress^ the littoral state's power to punish 
is undiminished. 

It is customary to throw upon the vessel the burden of 
proving actual distress or force majeure. It seems reason- 
able also to assert that if a vessel is hovering just outside 
the marginal sea for the purpose of smuggling, the plea of 
distress will not be recognized if she is subsequently forced 
within the three-miles limit by stress of weather, shortage 
of water or provisions, or the like. 

"Distress" may include injury to hull or machinery or 
shortage of provisions of fuel. But in the latter cases it 
must be shown that the shortage was not due to improvi- 
dence ini supplying the vessel before her voyage began. 
"Force majeure" may include the action of pirates or mutin- 
eers. In such cases the pirates or mutineers should be sub- 
ject to prosecution since in this instance it is the ship and 
cargo only and not the persons in charge whose entry into 
territorial waters is due to compulsion. 

In regard to warships it is clear that in time of 
war as well as in peace such vessels have a right of 
entry if in distress. During the war of 1914r-18, the 
Netherlands, which excluded all belligerent war- 
ships, made an exception in favor of vessels in 
want or in danger from weather or sea conditions. 
Insofar as permission to enter is concerned, inter- 
national law does not distinguish between the 



44 

causes of the distress. Vessels damaged by enemy 
gunfire or pursued by enemy craft are granted 
asylum in a fashion no different from warships 
driven in by stress of weather. Once admitted in 
distress, a belligerent warship is subject to varying 
treatment depending upon the causes of the dis- 
tress. What should be done after admission is 
therefore a separate problem from that of the origi- 
nal entry. Force majeure gives a right of entry 
only but no necessary right to repair the damage, 
to replenish supplies, to depart freely, or to be 
immune from internment. The distress must be 
genuine : 

"Where the party justifies the act upon the plea of distress 
it must not be a distress which he has created himself . . ." 
(Hyde, International Law. Vol. I, p. 400, note.) 

The subject of asylum in neutral ports was care- 
fully considered in Naval War College Situations, 
1935, pp. 42-53, and is also treated at length in the 
Harvard Draft Code " Rights and Duties of Neu- 
tral States in Naval and Aerial War," American 
Journal of International Law, Supplement, July 
1939, pp. 425-432, and pp. 462-477. 

REPAIR OF DAMAGE CAUSED BY ENEMY FIRE 

Though for a long time international law did not 
distinguish in matters of repair between damage 
caused by enemy fire and injury due to a different 
origin and, in the words of article 17 of Hague 
Convention XIII of 1907, merely said that "bel- 
ligerent warships may only carry out such repairs 
as are absolutely necessary to render them sea- 
worthy and may not add in any manner whatso- 
ever to their fighting force," in later years a clear 



45 

distinction has been made between the sources of 
damage. In the Havana Convention on Maritime 
Neutrality of 1928 (Hudson, "International Legis- 
lation,' ' Vol. IV, p. 2402) article 9 reads: 

Damages which are found to be produced by the enemy's 
fire shall in no case be repaired. 

One also finds in the Scandinavian rides regard- 
ing neutrality (American Journal of International 
Law, October 1938, Official Documents, p. 144) the 
following article from the Danish regulations. 
Similar statements exist in the rules as put forth 
by Finland, Iceland, Norway, and Sweden : 

In Danish ports or anchorages, belligerent warships may 
repair damages only to the extent indispensable to the safety 
of their navigation, and they may not increase in any man- 
ner their military force. Damaged ships may procure no 
aid on Danish territory for the repairing of damages mani- 
festly caused by acts of war of the adversary. The compe- 
tent Danish authorities shall determine the nature of the 
repairs to be made. 

In the Harvard Draft Code on Neutrality, op. 
cit., article 34 states: 

A neutral State which admits a belligerent warship in dis- 
tress shall permit such warship to remain only for the time 
necessary for remedying the condition of distress under 
which it entered; but a condition of distress which is the 
result of enemy action may not be remedied and if the vessel 
is unable to leave, it shall be interned. 

The proclamation of the President of the United 
States, September 5, 1939, expressly forbade re- 
pairs of damage inflicted by the enemy : 

Xo ship of war of a belligerent shall be permitted, while 
in any port, harbor, roadstead, or waters subject to the juris- 
diction of the United States, to make repairs beyond those 
that are essential to render the vessel seaworthy and which 



46 

in no degree constitute an increase in her military strength. 
Repairs shall be made without delay. Damages which are 
found to have been produced by the enemy's fire shall in no 
case be repaired. 

(■i Federal Register, p. 3809.) 

NEUTRAL REGULATIONS IN REGARD TO 
SUBMARINES 

Though customarily neutral powers have ad- 
mitted belligerent warships into their ports, sub- 
ject of course to the regulations concerning length 
of stay, repairs, and supplies, the naval vessels of 
States at war have no absolute right to enter neu- 
tral harbors. Neutral States may, if they wish, 
do as The Netherlands did in the last war and ex- 
clude all belligerent warcraft entirely. The neu- 
tral is under no duty to forbid entry into its terri- 
torial waters or roadsteads, but it has the right to 
apply such a ban if it chooses. 

The practice of states indicates that warships are usually 
admitted to neutral waters under conditions fixed by the 
neutral state, but the evidence does not indicate that admis- 
sion is allowed as a matter of legal duty, though there were 
many treaties in the 18th century which provided that public 
armed vessels might enjoy the hospitality of neutral ports. 
Total exclusion, however, was the rule applied in certain 
instances which were not cases of reprisal . . . (Harvard 
Draft Code, op. cit., page 426.) 

There is no obligation upon neutral states to admit war- 
ships belonging to belligerent states, but it is not in general 
refused. (Commission of Jurists, General Report, 1923. 
British Parliamentary Papers, Cmd. 2201, p. 38.) 

Special regulations have been issued by many 
powers in regard to submarines. This type of ship 
has been singled out for individual attention due 
to the fact that the operations of submarine craft 



47 

are more difficult to control than those of surface 
vessels and are more likely to involve a neutral 
power in difficult and embarrassing complications. 
In the World War, for example, Spain issued a 
decree which forbade all submarine vessels of any 
kind whatsoever belonging to belligerent powers 
to navigate in Spanish waters. Norway and Swe- 
den also issued orders strictly limiting the right of 
submarines to enter their jurisdiction. After the 
war other States such as Belgium, Venezuela, the 
United States, and Yugoslavia drafted regulations 
dealing with submarines, and the Harvard Draft 
Code, op. cit., pages 432-435, contains a special 
article declaring that : 

A neutral state may exclude belligerent submarine vessels 
from its territory, or admit such vessels on condition that 
they conform to such regulations as may be prescribed. 

PROVISIONS OF THE AMERICAN NEUTRALITY 

ACT OF 1939 

Section 11. Whenever, during any war in which the United 
States is neutral, the President shall find that special restric- 
tions placed on the use of the ports and territorial waters of 
the United States by the submarines or armed merchant ves- 
sels of a foreign state will serve to maintain peace between the 
United States and foreign states, or to protect the commercial 
interests of the United States and its citizens, or to promote 
the security of the United States, and shall make proclama- 
tion thereof, it shall thereafter be unlawful for any such sub- 
marine or armed merchant vessel to enter a port or the terri- 
torial waters of the United States or to depart therefrom, ex- 
cept under such conditions and subject to such limitations as 
the President may prescribe. Whenever, in his judgment, the 
conditions which have caused him to issue his proclamation 
have ceased to exist, he shall revoke his proclamation and the 
provision of this section shall thereupon cease to apply, ex- 
cept as to offenses committed prior to such revocation. 



48 



PROCLAMATION OF THE PRESIDENT, 
NOVEMBER 4, 1939 



Whereas section 11 of the Joint Resolution approved No- 
vember 4, 1939, provides : 

"Whenever, during any war in which the United States is 
neutral, the President shall find that special restrictions 
placed on the use of the ports and territorial waters of the 
United States by the submarines or armed merchant vessels of 
a foreign state, will serve to maintain peace between the 
United States and foreign states, or to protect the commercial 
interests of the United States and its citizens, or to promote 
the security of the United States, and shall make proclamation 
thereof, it shall thereafter be unlawful for any such subma- 
rine or armed merchant vessel to enter a port or the terri- 
torial waters of the United States or to depart therefrom, ex- 
cept under such conditions and subject to such limitations as 
the President may prescribe. Whenever, in his judgment, 
the conditions which have caused him to issue his proclama- 
tion have ceased to exist, he shall revoke his proclamation and 
the provisions of this section shall thereupon cease to apply, 
except as to offenses committed prior to such revocation. " 

Whereas there exists a state of war between Germany 
and France; Poland; and the United Kingdom, India, 
Australia, Canada, New Zealand, and the Union of South 
Africa : 

Whereas the United States of America is neutral in such 
war: 

Now, therefore. I, Franklin D. Roosevelt. President of 
the United States of America, acting under and by virtue 
of the authority vested in me by the foregoing provision of 
section 11 of the Joint Resolution approved November 4, 
1939. do by this proclamation find that special restrictions 
placed on the use of the ports and territorial waters of the 
United States, exclusive of the Canal Zone, by the sub- 
marines of a foreign belligerent state, both commercial sub- 
marines and submarines which are ships of war, will serve 
to maintain peace between the United States and foreign 
states, to protect the commercial interests of the United 
States and its citizens, and to promote the security of the 
United States: 



49 

And I do further declare and proclaim that it shall here- 
after be unlawful for any submarine of France; Germany: 
Poland : or the United Kingdom, India, Australia, Canada, 
Xew Zealand, or the Union of South Africa, to enter ports 
or territorial waters of the United States, exclusive of the 
Canal Zone, except submarines of the said belligerent states 
which are forced into such ports or territorial waters of the 
United States by force majeure; and in such cases of force 
majeure, only when such submarines enter ports or terri- 
torial waters of the United States while running on the 
surface with conning tower and superstructure above water 
and flying the flags of the foreign belligerent states of which 
they are vessels. Such submarines may depart from ports 
or territorial waters of the United States only while run- 
ning on the surface with conning tower and superstructure 
above water and flying the flags of the foreign belligerent 
states of which they are vessels. 

Axd I hereby do enjoin upon all officers of the United States, 
charged with the execution of the laws thereof, the utmost 
diligence in preventing violations of the said joint resolution, 
and this my proclamation issued thereunder, and in bringing 
to trial and punishment any offenders against the same. 

And I do hereby revoke my Proclamation Xo. 2371 issued 
by me on October 18, 1939, in regard to the use of ports or 
territorial waters of the United States by submarines of 
foreign belligerent states. 

This proclamation shall continue in full force and effect 
unless and until modified, revoked or otherwise terminated, 
pursuant to law. 

In witness whereof, I have hereunto set my hand and 
caused the Seal of the United States of America to be affixed. 

Done at the city of Washington this fourth day of Novem- 
ber, in the year of our Lord nineteen hundred and 

[seal] thirty-nine and of the Independence of the United 

United States of America the one hundred and 

sixty-fourth, at 12.04 p. m. 

Franklin D. Roosevelt 

By the President : 

Cordell Hull 

Secretary of State, 

(4 Fed. Reg., p. 4494.) 



50 

COMMERCIAL SUBMARINES 

During the World War of 1914-18 there was a 
difference of opinion between the American and 
British Governments on the subject of commercial 
submarines. It was the American contention that 
a submarine could be a bona fide merchant vessel, 
a view which it upheld in regard to the German 
submarine Deutschland which arrived in Balti- 
more July 9, 1916, with a cargo of dyestuffs. 
Great Britain contended that the Deutschland 
should be treated as a warship, claiming that it 
was not likely that submarines could be employed 
in anything but a hostile capacity. The United 
States Government did not alter its stand, however, 
and because of the reference to commercial sub- 
marines in the President's proclamation of Novem- 
ber 4, 1939, it is apparent that this country still 
considers it perfectly possible for a submarine to 
operate as a genuinely commercial ship. The 
American and British exchange of 1916 is thor- 
oughly considered in Naval War College, Inter- 
national Law Situations, 1931, pp. 73-78. 

APPLICATION TO THE PRESENT SITUATION 

The submarine of State U should be granted 
entry into the American port. The rule as to asy- 
lum governs this case and the distress seems gen- 
uine. If the American Government is convinced 
that the submarine is really unarmed and is a com- 
mercial craft, and if, as seems likely, it adheres 
to the view expressed in the replies to Great Brit- 
ain in 1916, then the vessel should be treated like 
any surface merchant craft. It can remain in- 
definitely in American waters and may obtain full 



51 

repairs and supplies. If the submarine, however, is 
looked upon as a warship, then it could remain 
in port but 24 hours. Because it arrived in dis- 
tress, it is exempt from the prohibition against 
entry but it is not free to stay to make repairs of 
damage caused by enemy gunfire. Classed as a 
war vessel, the submarine must either depart within 
the stipulated period or else be interned. 

AMERICAN NEUTRALITY AND LATIN AMERICA 

In both of the American so-called neutrality laws 
of 1937 and 1939 there were provisions relating to 
Latin America and exempting those republics from 
the application of the statutes, provided such re- 
publics were not cooperating with any non- Ameri- 
can states in any war. In the 1937 law section 4 
dealt with the American Republics, and virtually 
the same stipulations were contained in section 9 
of the 1939 enactment. This section reads as 
follows : 

This joint resolution (except section 12) shall not apply to 
any American republic engaged in war against a non- 
American state or states, provided the American republic is 
not cooperating with a non- American state or states in such 
war. 

Maintenance of the Monroe Doctrine is what 
Congress obviously had in mind in framing this 
part of the legislation. Application of this section in 
any war between a Latin- American republic and 
a non- American power would clearly involve the 
United States in unneutral conduct. This country 
would not be impartial but would be applying re- 
strictions on loans, shipment of goods, travel on 
belligerent vessels, etc., against one of the parties 
(the non-American state) and not against the 



52 

Latin- American belligerent. In general there was 
very little debate in Congress, however, on this part 
of the law. One of the few Congressmen to com- 
ment on this section and to point out some of the 
dangers was Kepresentative McReynolds who de- 
clared : 

"With this mandatory provision, suppose a foreign coun- 
try should attack Mexico or Canada or should attack any of 
the South American countries. You could not ship any of 
those countries arms. Your President would have no dis- 
cretion. The bill makes no exception. Then where is your 
Monroe Doctrine?*' 

(Congressional Record, Vol. 79, p. 14370.) 

Also at the time of the discussion about the 1937 
law, Assistant Secretary of State Moore declared 
in the Senate committee hearings : 

"The threat of an attack would be known before there was 
an actual one. The nation that might make it is a good 
many thousand miles away. It would be known in time for 
Congress to act and to remove the restrictions so far as the 
country to the south of us was in danger. * * * So, 
practically, it does not seem to be desirable, certainly not 
necessary, to put any such exception in the law." 

(Hearings, Xo. 3, p. 43.) 

Not much else was said, however, in either branch 
of Congress, and a section calling for unneutrality 
thus slipped into a so-called neutrality statute, with 
a minimum of discussion. 

ARMED MERCHANT VESSELS 

The problem of armed merchantmen has been 
discussed many times in Naval War College situa- 
tions, notably in 1927, and has been thoroughly 
analyzed by Borchard and Lage in " Neutrality for 
the United States," part II, Chapter II. During 



53 

the World War of 1914-17 the American Govern- 
ment insisted upon the right of American citizens 
to travel upon belligerent armed merchant ships, 
and permitted such vessels to enter our ports. In 
its controversy with Germany over submarine war- 
fare, the United States also insisted that belliger- 
ent merchant ships, armed or unarmed, were en- 
titled to warning before being sunk. Though Sec- 
retary of State Lansing in 1916 attempted to change 
the American stand, the British contention that 
their ships were armed for "defensive" purposes 
was accepted by the United States. It is true that 
American citizens had a right to take passage on 
belligerent armed vessels but they did so at their 
own risk, and the effort of the United States to 
obtain a promise from Germany to have its sub- 
marines come to the surface and give warning, at 
the same time that it was condoning the British 
practice of arming for defense, was neither very 
successful nor very logical. During the war of 
1939-40 the same problem has not recurred. Un- 
der the neutrality laws, American citizens are for- 
bidden to travel on belligerent ships and the arming 
of American merchant vessels has been prohibited. 
The President, further, under section 11 has the 
authority to forbid the entry of foreign armed mer- 
chantmen. By domestic statute, therefore, the 
United States is better equipped than before to 
meet the armed merchantmen problem, but the fact 
remains that under international law American 
citizens may still travel on belligerent armed mer- 
chant ships. 



54 

QUALIFIED NEUTRALITY 

Nations which assume an equivocal attitude to- 
ward a war and which are not completely neutral 
in all respects, may be said to be in a state of 
qualified neutrality. Previous examples of this 
dubious status may be found in Naval War College, 
International Law Situations, 1917, and the action 
of Brazil which revoked its neutrality law on June 
4, 1917, without making a declaration of war is to 
be noted especially. Qualified neutrality has put 
in its appearance in the European war of 1939-40. 
Italy officially adopted a position of " nonbelliger- 
ency" instead of neutrality (See Italian note to 
Great Britain, March 4, 1940, New York Times, 
March 5, 1940), and in January 1940 the Turkish 
Foreign Minister declared, "We are not neutral; 
we are simply not in the war" (New York Times 
January 27, 1940). In the past, neutrality has 
derived its vitality from a feeling of genuine in- 
difference on the part of third states to the outcome 
of the conflict. Contrary to the assertions made 
by some collective-security enthusiasts to the effect 
that neutrality is the negation of community feel- 
ing, neutrality is possible only when there is suffi- 
cient community of interest between the belliger- 
ents and between the belligerents and the neutrals 
to cause the latter not to care too greatly which 
side wins. Neutrality therefore depends upon 
the existence of enough community to make the 
outcome of a war not a matter of alarming con- 
cern to the way of life of nonparticipating States. 
Where the community schism runs deep, neutrality 
becomes more and more difficult to maintain. 



do 

Failure of a neutral to discharge its obligations 
in all respects, does not necessarily mean that it 
is deprived of all neutral rights or has assumed 
a position of complete partiality. Any sort of un- 
neutral conduct does open the way for reprisals 
by the injured belligerent party. In the present 
case, the United States is not completely neutral 
between States U and W. Armed merchant ves- 
sels of the latter are entitled to entry into Ameri- 
can ports and American citizens may travel on the 
ships of State W. State U has a legitimate basis 
for grievance against the United States. Failure 
of the United States to be impartial in respect to 
its neutrality law, however, would not seem to de- 
prive it of the protection of all the customary laws 
of neutrality. American citizens had a right to 
be on the vessel of State W, and the sinking, w T hich 
was an act of war committed within the territorial 
waters of the United States, w T as flagrantly illegal. 
Had the sinking occurred on the high seas, the de- 
struction without warning of an armed vessel 
would not be so serious (see discussion above on 
armed merchant vessels), but the United States 
cannot permit such an act within its territorial 
limits and should protest strongly to State U. 
Both the diplomatic and legal positions of the 
United States, however, are admittedly weakened 
by the adoption of the special partiality stand, and 
the situation well illustrates some of the complex- 
ities which can arise when a nation abandons strict 
neutrality without embarking upon the course of 
belligerency. 



56 

APPLICATION TO OTHER STATES "INVOLVED" 

IN WAR 

Section lb of the 1937 Neutrality law states that 
"the President shall, from time to time, by procla- 
mation extend such embargo upon the export of 
arms, ammunitions, or implements of war to other 
states as and when they may become involved in 
such war" and the concluding part of section la 
of the Neutrality Act of 1939 also specifies that the 
President " shall from time to time by proclama- 
tion name other states as and when they may be- 
come involved in the war." Interpretation of the 
word "involve" is the central problem here. For- 
eign nations which engage in the war and become 
belligerents, apparently would be "involved" and 
probably would have to be named by the President 
in his proclamation, though there is room for ar- 
gument on this point. In his proclamation of Sep- 
tember 5, 1939, President Roosevelt, acting under 
the act of May 1, 1937, applied the arms embargo 
to France, Germany, Poland, the United Kingdom, 
India, Australia, and New Zealand, powers which 
were at war by virtue of unequivocal declarations 
of belligerency. South Africa and Canada, whose 
status was not exactly clear on September 5, were 
included by proclamations on September 8th and 
September 10th, respectively. 

States engaged in the application of economic 
sanctions are not necessarily at war with the nation 
against which the measures are directed. Members 
of the League of Nations were not at w 7 ar with Italy 
during the sanctions episode of 1935-36, even 
though they held the latter "had resorted to war" 
against Ethiopia. Sanctionist powers, therefore, 



57 

adopt the status of partiality and are neither neu- 
tral nor belligerent. It is up to the President to 
decide whether nations applying sanctions are " in- 
volved' ' or not. Executive discretion determines 
the matter. Since the enactment of the first neu- 
trality law in 1935, the President has seen fit to 
interpret "involve" as meaning participation by 
a state as a full-fledged belligerent. 

RESUME 

Adoption of special neutrality legislation by the 
United States has brought new problems. Issues 
arising under these domestic statutes must be 
clearly differentiated from those arising under gen- 
eral international law. New regulations concern- 
ing submarines, armed merchantmen and the treat- 
ment of Latin- American republics now supplement 
or contradict the customary international rules 
of neutrality. In regulating the entry of sub- 
marines and armed merchant vessels, in applying 
embargoes on loans and arms, and in making stipu- 
lations concerning trade and travel, the United 
States is clearly within its legal rights and is 
merely exercising its authority as conceded by the 
law of nations. The section relating to Latin 
America, however, calls under certain circum- 
stances, for a position of partiality on the part of 
the United States which as a result may be called 
to account internationally for its unneutral con- 
duct. 

SOLUTION 

(a) The submarine should be admitted. 
Whether, after entry it should be interned or al- 
lowed to make repairs and depart depends upon 

247670—40 5 



58 

whether all submarines are to be classed as war- 
ships or whether the American Government con- 
tinues to recognize that some submarines can 
possess a genuinely commercial character. 

(&) The action of the submarine of State U is 
illegal, constitutes a violation of American neu- 
trality and should be protested by the United 
States. Despite its unneutral conduct in regard 
to Latin America, the United States is still a neu- 
tral and entitled to neutral rights, though its posi- 
tion is somewhat weakened by the application of 
section 8 of the law of 1937. 

(c) The application of the provisions of the law 
of 1937 to states applying economic sanctions is a 
matter of executive discretion and not one of legal 
obligation. 



Situation III 

CONTIGUOUS ZONES, AIRPLANES, AND 
NEUTRALITY 

State K has a leased area and has constructed a 
canal in State L upon terms identical with those 
existing between the United States and Panama. 
States U and V are at war. States K and L have 
issued declarations of neutrality. The Dominion 
of Vinta, which has the same relationship with 
State V that the British Dominions have with the 
United Kingdom, has issued a statement to the ef- 
fect that it will abstain from participation in the 
war. State K has declared a "protective zone," 
extending for a radius of 100 miles to sea from both 
exits of the canal, in which all naval and military 
craft of any state are forbidden to hover or navi- 
gate unless intending to pass directly to or from the 
canal. 

(a) The Vera, & merchant vessel of Vinta, is 
attacked when 75 miles from the canal by the 
Union, a cruiser of State U. The Vera asks for 
protection from the Komlo, a cruiser of State K, 
which is nearby. 

(b) The Vincent, a cruiser of Vinta, remains in 
one of the canal ports for several days. State U 
protests to State K that the Vincent should be 
treated as a belligerent vessel. 

(c) The Vigo, a cruiser of State V, while on pa- 
trol duty 110 miles from the canal, sends an air- 
plane, the V-l, to a port in the canal zone for 

59 



60 

needed medical supplies. The V-l takes back not 
only the medical supplies but also the naval at- 
tache of the legation of State V in State L who 
has important information for the Vigo. State 
U protests to State K that the latter has failed to 
fulfill its neutrality obligations by permitting the 
airplane and the attache to depart. 

(d) States, L, U, and V protest to State K that 
the " protective zone" is illegal. 

What are the legal rights in each case ? 

solution 

(a) The commander of the Komlo should act to 
protect the Vera, thus conforming to the domestic 
law of his own State. The legality of the pro- 
tective zone under international law depends upon 
its acceptance by other powers. In this instance, 
therefore, the protective zone is not recognized by 
international law and State U may attempt to 
hold State K internationally responsible. 

(b) It is legally possible for Vinta to be a neutral 
State. If the Dominion of Vinta is recognized as 
a neutral by the belligerents, the Vincent may re- 
main in the canal ports indefinitely. 

(c) The V-l has no right to enter neutral juris- 
diction and the authorities of State K in the Canal 
Zone should have used the means at their disposal 
to prevent the departure of V-l. 

(d) States L, U, and V are not obliged to rec- 
ognize the zone and their protests are legally valid. 

notes 
contiguous zones 

It is generally agreed that 3 miles is the mini- 
mum limit of territorial waters. The Interna- 



61 

tional Codification Conference at The Hague in 
1930 demonstrated that there is no universal agree- 
ment upon the maximum extent of the littoral 
state's authority. The United States regards 3 
miles as the limit of American jurisdiction, but 
other powers have made claims for wider belts. 
(See Naval War College, International Law Situa- 
tions, 1928, and Harvard Draft Code, Territorial 
Waters, American Journal of International Law, 
Supplement, April 1929.) Within territorial wa- 
ters, whatever may be their width, it is agreed that 
the State exercises complete jurisdiction, but be- 
yond the marginal seas, international law recog- 
nizes an attenuated or more limited kind of 
jurisdiction for special purposes. As Gidel says : 

"There is a maritime area beyond the limits of territorial 
waters, for an unspecified distance, in which the shore state 
possesses a certain jurisdiction over foreign vessels, a juris- 
diction rigorously limited to specific objects." 

(Le Droit International Public de la Mer, p. 361.) 

Fixed or "exact limits for the special contiguous 
areas do not exist. International law has simply 
recognized that in certain circumstances for limited 
purposes littoral states may extend their jurisdic- 
tion beyond territorial waters, and the limits of 
these areas vary and have varied greatly. Whether 
a contiguous zone is to be recognized in interna- 
tional law depends upon the willingness of other 
nations to accept the claims of a state making 
pretentions to such long-range jurisdiction. The 
law of nations recognizes the contiguous zone in 
principle, but fixes no bounds for it and does not 
specify in any comprehensive fashion as to type 
or kind. Each claim to a zone must be examined 
individually, and it is a characteristic of these areas 



62 

that their legal basis rests upon the attitude of 
foreign states in each case. Any new claim to ju- 
risdiction over foreign ships beyond the customary 
marginal limits may meet with the objection of 
the foreign state or states affected. If the latter 
refuse to accord recognition, they may legally assert 
that the zone has no legal standing; if they give 
consent, either expressly or by failure, over a pe- 
riod of time, to make protest, the special area may 
be said to have been accepted as internationally 
valid. 

A littoral state, therefore, has full jurisdiction 
for at least three miles and a limited and much mod- 
ified jurisdiction for an indefinite number of miles 
beyond that. In the past, international law has 
recognized contiguous zones mainly for customs 
and fiscal purposes and only more recently has 
begun to take account of special jurisdiction for 
defensive or neutrality purposes. There is nothing 
new, therefore, about the contiguous zone in prin- 
ciple; what is apt to be new is the attempt of a 
state to apply the principle over an area or in 
regard to certain acts which other powers may not 
find acceptable. The declaration of authority in a 
contiguous zone is therefore not necessarily bind- 
ing upon other nations initially. Through accept- 
ance, tacit or overt, it may come to be recognized 
in the law of nations, or through rejection it may 
fail to obtain legal standing. 

HISTORY OF CONTIGUOUS ZONES 

It was in the realm of customs and finance that 
special areas of jurisdiction beyond the normal 
limits first came to be recognized in international 
law. British legislation of 1718 gave revenue au- 



63 

thorities permission to board vessels intending to 
enter British ports at a distance considerably be- 
yond 3 miles. A similar law of 1784 specified 12 
miles, and an act of 1805 declared a zone of 300 
miles in which British ships, or vessels of certain 
foreign states, coming from certain countries 
loaded with certain goods of a certain quantity 
might be inspected by government agents. By 
legislation in 1853 and 1876 Great Britain aban- 
doned all such efforts to control hovering and 
smuggling beyond the 3-mile limit, but the United 
States in 1790 and 1799 passed so-called hovering 
laws, modelled upon earlier British statutes, which 
permitted American revenue authorities to board 
foreign ships destined for an American port up 
to a distance of 12 miles from shore. The Amer- 
ican Tariff Act of 1922 gave boarding rights within 
12 miles even if the foreign craft had no intention 
of entering an American port. The treaties be- 
tween the United States and other nations in 1924 
granted American agents boarding rights within 
1 hour's sailing distance from shore. 

It must be emphasized that these rights within 
12 miles or within 1 hour's sailing distance are 
strictly limited and do not grant the United States 
the complete jurisdiction which it of course pos- 
sesses within the narrower band of territorial seas. 
It should also be stressed that the legislation just 
described was at first purely British or American 
domestic law and by no means constituted a part 
of international law. Through the years, however, 
American and British practice under these stat- 
utes was accepted by other nations which in their 
turn have enacted comparable legislation. In 1936 
every state in the world except Great Britain, Ja- 



64 

pan, the Netherlands, Portugal, Yugoslavia, and 
Colombia had special customs zones. The practice 
and usage of nations therefore recognizes contigu- 
ous zones for customs purposes. In 1935 the 
United States enacted an antismuggling act (49 
U. S. Stat, at Large, pt. 1, p. 517) which gave the 
President authority to proclaim so-called " customs 
enforcement areas" up to a distance 62 miles from 
the coast. Inasmuch as other states have not chal- 
lenged the validity of this legislation it appears to 
have been regarded as not being incompatible with 
international law. This example well illustrates 
the point that customs areas have been accepted in 
principle and that each domestic alteration and ex- 
tension depends upon the sufferance of other states. 
(For further information on contiguous zones in 
general and customs areas in particular see Gidel 
op. cit. ; Harvard Draft Code on Territorial Wa- 
ters, op. cit.) 

CONTIGUOUS ZONES FOR DEFENSE AND 
OTHER PURPOSES 

Whether international law recognizes contiguous 
zones in principal for other than customs purposes 
is more problematical, but such areas for purposes 
of sanitation, security, and national defense have 
definitely acquired some standing. As early as 1804 
Chief Justice John Marshall of the United States 
Supreme Court in the celebrated case of Church vs. 
Hubbart (2 Cranch 187) declared that the power 
of a nation "to secure itself from injury may cer- 
tainly be exercised beyond the limits of its terri- 
tory." In 1864 the Government of France asked 
that the battle between the Alabama and the Kear- 



65 

sarge be fought at a safe distance (more than 3 
miles) from the French coast, and in 1915 and 1916 
the United States Government requested the Brit- 
ish to order their warships not to hover close in 
to the 3-mile line. Though in each of these in- 
stances the requests were made and acceded to upon 
the basis of comity and not of legal right, they 
were indicative of a trend. (For an account of 
the hovering by British warships during the last 
war see Naval War College, International Law 
Situations, 1928, page 31.) By an act March 4, 
1917 (39 Stat. 1194; Naval War College Situations, 
1918, p. 162) the United States proclaimed certain 
" defensive sea areas" and on August 27, 1917, a 
similar sort of " defensive sea area" was proclaimed 
for Panama. (U. S. Off. Bull. 99, p. 8.) Though 
the zones included under these proclamations were 
not very extensive, the maximum width being only 
13 miles, these " defense areas" constituted an im- 
portant precedent and, having been apparently un- 
challenged, are of significance for the development 
of the principle of contiguous zones for defense 
purposes. 

The Harvard Draft Code on Rights and Duties 
of Neutral States, op. cit., recognizes the principle 
of neutral jurisdiction for protective purposes be- 
yond 3 miles : 

Article 18. A belligerent shall not engage in hostile oper- 
ations on, under or over the high seas so near to the terri- 
tory of a neutral State as to endanger life or property 
therein. 

Article 19. A belligerent shall not permit its warships 
or military aircraft to hover off the coasts of a neutral 
State in such manner as to harass the commerce or industry 
of that State. 



66 

THE DECLARATION OF PANAMA, OCTOBER 3, 

1939 

The Governments of the American Republics meeting at 
Panama, have solemnly ratified their neutral status in the 
conflict which is disrupting the peace of Europe, but the pres- 
ent war may lead to unexpected results which may affect the 
fundamental interests of America and there can be no 
justification for the interests of the belligerents to prevail 
over the rights of neutrals causing disturbances and suffer- 
ing to nations which by their neutrality in the con- 
flict and their distance from the scene of events, should not 
be burdened with its fatal and painful consequences. 

During the World War of 1914—1918 the Governments 
of Argentina, Brazil, Chile, Colombia, Ecuador, and Peru 
advanced, or supported, individual proposals providing in 
principle a declaration by the American Republics that the 
belligerent nations must refrain from committing hostile 
acts within a reasonable distance from their shores. 

The nature of the present conflagration, in spite of its al- 
ready lamentable proportions, would not justify any obstruc- 
tion to inter- American communications which, engendered 
by important interests, call for adequate protection. This 
fact requires the demarcation of a zone of security including 
all the normal maritime routes of communication and trade 
between the countries of America. 

To this end it is essential as a measure of necessity to 
adopt immediately provisions based on the above-mentioned 
precedents for the safeguarding of such interests, in order 
to avoid a repitition of the damages and sufferings sus- 
tained by the American nations and by their citizens in the 
war of 1914-1918. 

There is no doubt that the Governments of the American 
Republics must foresee those dangers and as a measure of 
self -protect ion insist that the waters to a reasonable distance 
from their coasts shall remain free from the commission of 
hostile acts or from the undertaking of belligerent activities 
by nations engaged in a war in which the said governments 
are not involved. 



67 

For these reasons the Governments of the American Re- 
publics Resolve and Hereby Declare : 

1. As a measure of continental self -protection, the Ameri- 
can Republics, so long as they maintain their neutrality, 
are as of inherent right entitled to have those waters adjacent 
to the American continent, which they regard as of primary 
concern and direct utility in their relations, free from the 
commission of any hostile act by any non- American bellig- 
erent nation, whether such hostile act be attempted or made 
from land, sea or air. 

Such waters shall be defined as follows. All waters com- 
prised within the limits set forth hereafter except the ter- 
ritorial waters of Canada and of the undisputed colonies 
and possessions of European countries within these limits : 

Beginning at the terminus of the United States-Canada 
boundary in Passamaquoddy Bay, in 44°46'36" north lati- 
tude, and 66°54'11" west longitude; 

Thence due east along the parallel 44°46'36" to a point 
60° west of Greenwich; 

Thence due south to a point in 20° north latitude ; 

Thence by a rhumb line to a point in 5° north latitude, 
24° west longitude ; 

Thence due south to a point in 20° south latitude; 

Thence by a rhumb line to a point in 58° south latitude, 
57° west longitude ; 

Thence due west to a point in 80° west longitude ; 

Thence by a rhumb line to a point on the equator in 97° 
west longitude; 

Thence by a rhumb line to a point in 15° north latitude, 
120° west longitude ; 

Thence by a rhumb line to a point in 48°29'38" north 
latitude, 136° west longitude; 

Thence due east to the Pacific terminus of the United 
States-Canada boundary in the Strait of Juan de Fuca. 

2. The Governments of the American Republics agree that 
they will endeavor, through joint representation to such 
belligerents as may now or in the future be engaged in hos- 
tilities, to secure the compliance by them with the provisions 
of this Declaration, without prejudice to the exercise of 



68 

the individual rights of each State inherent in their sover- 
eignty. 

3. The Governments of the American Republics further 
declare that whenever they consider it necessary they will 
consult together to determine upon the measures which they 
may individually or collectively undertake in order to secure 
the observance of the provisions of this Declaration. 

4. The Americal Republics, during the existence of a state 
of war in which they themselves are not involved, may 
undertake, whenever they may determine that the need there- 
for exists, to patrol, either individually or collectively, as 
may be agreed upon by common consent, and insofar as the 
means and resources of each may permit, the waters adjacent 
to their coasts within the area above defined. 

(Department of State Bulletin, Vol. 1, No. 15, October 7, 
1939, pp. 331-333.) 

BRITISH ADMIRALTY STATEMENT ON THE 
PANAMA DECLARATION 

Several unofficial reports have been received recently of 
the important decisions reached at the Panama conference of 
the republics of America. These reports are to the effect 
that a neutral or safety zone of variously stated depth from 
the coast is to be established. 

It is understood that the zone is in no way intended as an 
extension of territoral waters, but belligerents are to be 
invited to accept the limitation of their operations which 
would be involved by the scheme. This is clearly the wisest 
way of proceeding, since while belligerents, and particularly 
the Allies, may be anxious to assist all neutral countries in 
keeping war from the proximity of their coasts, it must be 
for them to decide whether or not to accept restrictions 
which would limit their enjoyment of certain well-established 
rights. 

Neutral States are entitled and bound to demand that 
belligerents shall abstain from hostilities in their territorial 
waters and it is not a hostile act if a neutral repels even by 
force an attack upon his neutrality. During the great war 
Norway, Sweden, Spain and Holland forbade belligerent 



69 

submarines to enter their territorial waters except in case of 
distress. 

In olden times many extravagant claims were put forward 
by the various nations as to the limit of their territorial 
waters, but since those days such claims have been drastically 
modified and it is now generally recognized that no country 
can properly claim jurisdiction over large areas of ocean nor 
the right to control or exclude the movements of foreign 
ships on the high seas this applies equally to belligerent 
operations though a belligerent can of course restrict his 
operations of his own free will if he so wishes. 

Since the Great War the importance of the limit of terri- 
torial waters has been brought to the notice of the public in 
several ways, among others by reason of the national Prohi- 
bition Act of America. Resulting from discussions with 
Great Britain an agreement was reached in Washington in 
1924 whereby the United States was given a right to board 
and examine any British vessel suspected of being engaged 
in liquor smuggling at a distance from the coast that could be 
traversed by that vessel in one hour. 

By the same agreement Great Britain and America de- 
clared that it was their firm intention to uphold the principle 
that three marine miles extending from the coast line out- 
wards and measured from low-water mark, should constitute 
the proper limits of territorial waters. Similar agreements 
were subsequently entered into by America with Germany 
and Sweden. 

Certain bays, straits and canals have from time to time 
been the subject of special international agreement so that 
when questions of jurisdiction and sovereignty arise careful 
reference must be made to any agreements applicable to the 
particular case. The width of the general belt or territorial 
waters is now widely accepted as being three miles. Great 
Britain in common with many other countries has long 
refused to recognize claims to a territorial belt of great width. 

(New York Times, October 14, 1939.) 

AMERICAN REPUBLICS' STATEMENT ON THE 
"GRAF VON SPEE" INCIDENT 

Following the procedure of consultation provided in the 
Declaration of Panama, the 21 American republics have 



70 

agreed upon the following statement which the President of 
the Republic of Panama has transmitted in their names to 
the Governments of France, Great Britain, and Germany : 

"The American Governments are officially informed of 
the naval engagement which took place on the thirteenth in- 
stant off the northeastern coast of Uruguay, between certain 
British naval vessels and the German vessel Graf Von Spee, 
which, according to reliable reports, attempted to overhaul 
the French merchant vessel Formose between Brazil and 
the port of Montevideo after having sunk other merchant 
vessels. 

"They are also informed of the entry and scuttling of the 
German warship in the waters of the River Plate upon the 
termination of the time limit which, in accordance with the 
rules of international law, was granted to it by the Govern- 
ment of the Republic of Uruguay. 

"On the other hand, the sinking or detention of German 
merchant vessels by British vessels in American waters is 
publicly known, as appears — to begin with — from the recent 
cases of the Dusseldorf, Ussukuma, and others. 

"All these facts which affect the neutrality of American 
waters, compromise the aims of continental protection pro- 
vided for by the Declaration of Panama of October 3, 1939, 
the first paragraph of which establishes : 

" 'As a measure of continental self -protection, the Ameri- 
can Republics, so long as they maintain their neutrality, 
are as of inherent right entitled to have those waters adja- 
cent to the American continent, which they regard as of 
primary concern and direct utility in their relations, free 
from the commission of any hostile act by any non- American 
belligerent nation, whether such hostile act be attempted 
or made from land, sea, or air.' 

"Therefore, in accordance with the method provided for in 
that instrument and with a view to avoiding the repetition 
of further events of the nature to which reference is made 
above, the American nations resolve to lodge a protest with 
the belligerent countries and to initiate the necessary con- 
sultation in order to strengthen the system of protection in 
common through the adoption of adequate rules, among 
them those which would prevent belligerent vessels from 



71 

supplying themselves and repairing damages in American 
ports, when the said vessels have committed warlike acts 
within the zone of security established in the Declaration of 
Panama." 

(Department of State Bulletin, Vol. 1, No. 26, December 
23, 1939, p. 723.) 

BELLIGERENTS' REPLY TO NEUTRALITY ZONE 

PROTEST 

Great Britain: 

1. His Majesty's Government of the United Kingdom have 
devoted most careful consideration to the communication 
agreed upon unanimously by the twenty-one American re- 
publics, the text of which was telegraphed to His Majesty the 
King by the Acting President of Panama on Dec. 23 last. 

In that communication reference was made among other 
matters to the recent naval action between British and Ger- 
man warships in the South Atlantic and to the maritime se- 
curity zone described in the declaration at Panama on Oct. 3, 
1939. 

2. His Majesty's Government, who themselves for so long 
strove to prevent war, fully appreciate the desire of the Amer- 
ican republics to keep war away from shores of the American 
Continent. It was, therefore, not merely with interest but 
with understanding that His Majesty's Government learned 
of the maritime security zone proposal. 

His Majesty's Government noted with satisfaction from the 
Declaration of Panama itself that an attempt would be made 
to base observance of its provisions upon the consent of the 
belligerents. This fresh expression of adherence to the idea of 
solving international difficulties by mutual discussion, which 
always has been upheld by the American Republics, confirmed 
His Majesty's Government's belief that these powers would 
not attempt to enforce observance of the zone by .unilateral 
action and encouraged their hope that it would be possible 
to give effect, by means of negotiation, to the intentions which 
inspired it. 

3. It was in this spirit that His Majesty's Government were 
examining the proposal of the conference of Panama at the 
time when the communication of Dec. 23 was received. In 



72 

view of this communication, His Majesty's Government desire 
to draw attention of the American Republics to the following 
considerations : 

4. It will be apparent, in the first place, that the proposal, 
involving as it does abandonment by belligerents of certain 
legitimate belligerent rights, is not one which, on any basis of 
international law, can be imposed upon them by unilateral 
actions and that its adoption requires their specific assent. 

5. Acceptance by His Majesty's government of the sugges- 
tion that belligerents should forego their rights in the zone 
must clearly be dependent upon their being satisfied that 
adoption of the zone proposal would not provide German 
warships and supply ships with vast sanctuary from which 
they could emerge to attack Allied and neutral shipping r 
to which they could return to avoid being brought into action 
and in which acts of unneutral service might be performed 
by German ships, for example, by using wireless communi- 
cations. 

It would also be necessary to insure that German war- 
ships and supply ships would not be enabled to pass with 
impunity from one ocean to another through the zone, or 
German merchantships to take part in inter- American trade 
and earn foreign exchange which might be used in attempts 
to promote subversion and sabotage abroad and procure sup- 
plies for prolongation of the war, thus depriving the Allies of 
the fruits of their superiority at sea. 

6. Moreover, acceptance of the zone proposals would have 
to be on the basis that it should not constitute a precedent 
for far-reaching alteration of existing laws on maritime 
neutrality. 

7. Unless these points are adequately safeguarded, the 
zone proposals might only lead to accumulation of bellig- 
erent ships in the zone. This, in turn, might well bring the 
risk of war nearer the American States and lead to fric- 
tion between, on the one hand, the Allies, pursuing their 
legitimate; belligerent activities, and, on the other, the 
American republics endeavoring to make this new policy 
prevail. 

8. The risk of such friction, which His Majesty's Govern- 
ment would be the first to deplore, would be increased by the 



73 

application of sanctions. His Majesty's Government must 
emphatically repudiate any suggestion that His Majesty's 
ships have acted or would act in any way that would justify 
adoption by neutrals of punitive measures which do not 
spring from accepted canons of neutral rights and obli- 
gations. 

If, therefore, the American States were to adopt a scheme 
of sanctions for enforcement of the zone proposal they would r 
in effect, be offering sanctuary to German warships within 
which His Majesty's ships would be confronted with the 
invidious choice of having either to refrain from engaging 
their enemy or of laying themselves open to penalties in 
American ports and waters. 

9. Up to the present it does not appear that means have 
been found by which disadvantages of the zone proposals 
could be eliminated. That this is the case was shown by 
operation in the zone of the warship Admiral Graf Spde 
and the supply ship Tacoma. With regard to specific inci- 
dents, of which mention was made in communications under 
reply, His Majesty's Government must observe that legiti- 
mate activities of His Majesty's ships can in no way imperil 
but must rather contribute to the security of the American 
Continent, protection of which was the object of the framers 
of the Declaration of Panama. 

His Majesty's Government cannot admit that there is any 
foundation for the claim that such activities have in any way 
exposed them to justifiable reproach, seeing that the zone 
proposal had not been made effective and belligerent assent 
had not yet been given to its operation. 

10. In view of the difficulties described above, it appears 
to His Majesty's Government that the only method of achiev- 
ing the American object of preventing belligerent acts within 
the zone would be : firstly, to ensure that the German Govern- 
ment would send no more warships into it; secondly, there 
are obvious difficulties in applying the zone proposal at this 
stage of the war when so much German shipping already 
has taken refuge in American waters. 

If the Allies are asked to forego the opportunity of cap- 
turing these vessels it would also seem to be necessary that 

247670—40 6 



74 

they should be laid up under Pan-American control for the 
duration of the war. 

11. In the view of His Majesty's Government, it would 
only be by means such as those indicated that the wish of 
American governments to keep war away from their coasts 
could be realized in a truly effective and equitable manner. 
Until His Majesty's Government are able to feel assured 
that the scheme will operate satisfactorily they must, 
anxious as they are for fulfillments of American hopes, 
necessarily reserve their full belligerent rights in order to 
fight the menace presented by German action of policy and 
to defend that conception of law and that way of life which 
they believe to be as dear to the people's governments of 
America as they are to the people's governments in the 
British Commonwealth of Nations. 

(Department of State Bulletin, Vol. 11, No. 35, February 
24, 1940, pp. 199-201.) 

France: 

The French Government has attentively examined the Pan- 
ama President's communication of Dec. 23, following the 
unanimous accord of the twenty-one American republics. 
The communication referred to the naval action occurring 
between British and German men-of-war after the [German 
pocket battleship] Admiral Graf Spee attempted to reach the 
French freighter Formose in order to destroy it. 

2. This communication refers to the desire manifested by 
the American republics in their declaration of Panama to see 
war excluded from the shores of the American continents. 
The French Government, which for a long time has sought to 
avoid war, fully appreciates the American republics' desire 
and has examined in the most sympathetic spirit their pro- 
posal tending to the creation of a maritime security zone. 

The French Government interprets the demarches made in 
behalf of the American governments, including that of Dec. 
23 as well as the previous communication of the Declaration of 
Panama, as implying in the minds of the American govern- 
ments that the constitution of such a zone, involving renun- 
ciation by belligerent states of the exercise in vast territories 
of rights well established by international custom, could only 
result from an accord between all the interested states. 



75 

3. Recent facts discussed in the communication addressed 
to the French Government in behalf of the twenty-one Ameri- 
can republics clearly illustrate the situation which is to be 
regulated. These facts proceed from the Admiral Graf 
Speeds attempt to attack and destroy in the maritime security 
zone the French cargoship Formose. It is clear that under 
the present circumstances of war such attempts by German 
vessels can have no effect upon the outcome of the war. 

It is no less clear, however, that if such acts are committed 
or attempted, France and Great Britain are strictly entitled 
to carry out counter-attacks in useful time and that they can- 
not be asked to renounce that right. It follows that if the 
security zone is to materialize as desired by the American gov- 
ernments, it is indispensable that the latter give the French 
Government satisfactory assurance that the German Govern- 
ment will not send warships or supply ships into the zone. 

The incontestable superiority France and Great Britain 
have over Germany in the Atlantic and the Pacific has had 
the result that many German cargo ships have been able to 
escape legitimate exercise of the prize law only by taking 
refuge in American ports. The institution of a security 
zone ought not to have the effect of liberating them, thus 
depriving the Allies of advantages following from their 
naval superiority over Germany. Hence it ought to entail 
effective measures taken by each American government cal- 
culated to keep German ships in ports where they have 
taken refuge. 

5. The American governments do not appear to envisage 
or assume responsibility to ensure in the vast spaces con- 
stituting their neutrality zone repression of acts of hostile 
assistance or un-neutral service. The possibility of such 
acts is so great, especially in view of radio communication, 
that the French naval forces should not be deprived of the 
right of preventing them and repressing them by all means 
within the limits of international law. 

6. It is on this basis, if the American governments obtain 
its acceptance by all belligerents, that realization of the aim 
desired by the American governments ought to be sought, 
in the opinion of the French Government. 

7. The French Government realizes that in view of the 
novelty of methods and extension of the zone, divergence of 



76 

views may arise in concrete cases. These might, at least, be 
easily treated by diplomatic channels if one chooses to apply 
the method of frank discussion and mutual accord regarding- 
principle as well as application. On the contrary, regret- 
table friction might be provoked if unilateral procedure were 
adopted, abandoning the habitual practice of nations. 

These frictions would be particularly grave if they arose 
from punitive measures against ships not guilty of any in- 
fraction of international law. Refusal in such cases to grant 
refuge or refueling possibilities to a warship would consti- 
tute an unpleasant contrast with the line of conduct that the 
Uruguayan Government adopted with regard to the Ad- 
m iral Graf Spee. 

8. The French Government hopes by this exposition of 
views to have contributed to realization of the aims inspir- 
ing the twenty-one American republics. At the same time 
it expects that the latter will admit that as long as no accord 
is reached on the above basis the French Government retains 
full exercise of a belligerent's rights based upon interna- 
tional law. which must enable it to safeguard the principles 
of right and the conception of life which it shares with the 
American governments and peoples. 

(Ibid. pp. 201-203.) 

Germany: 

(1) The German Government welcomes the intention of 
the American Republics, expressed in the Declaration of 
Panama, to maintain strict neutrality during the present con- 
flict, and fully understands that they wish, as far as possible, 
to take precautionary action against the effects of the pres- 
ent war on their countries and peoples. 

(2) The German Government believes itself to be in 
agreement with the American Governments that the regula- 
tions contained in the Declaration of Panama would mean a 
change in existing international law and infers from the 
telegram of October 4th of last year that it is desired to 
settle this question in harmony with the belligerents. The 
German Government does not take the stand that the hith- 
erto recognized rules of international law were bound to be 
regarded as a rigid and forever immutable order. It is 
rather of the opinion that these rules are capable of and 



77 

require adaptation to progressive development and newly 
arising conditions. In this spirit, it is also ready to take 
up the consideration of the proposal of the neutral American 
Governments. However, it must point out that for the Ger- 
man naval vessels which have been in the proposed security 
zone so far, only the rules of law now in effect could, of 
course, be effective. The German naval vessels have held 
most strictly to these rules of law during their operations. 
Therefore in so far as the protest submitted by the American 
Governments is directed against the action of German war- 
ships, it cannot be recognized by the German Government 
as well grounded. It has already expressed to the Govern- 
ment of Uruguay its divergent interpretation of the law also 
in the special case mentioned in the telegram of the Acting 
President of the Republic of Panama of December 24th. 
Besides, the German Government cannot recognize the right 
of the Governments of the American Republics to decide 
unilaterally upon measures in a manner deviating from the 
rules hitherto in effect, such as are to be taken under consid- 
eration by the American Governments against the ships of the 
belligerent countries which have committed acts of war 
within the waters of the projected security zone, according 
to the telegram of December 24th of last year. 

(3) Upon considering the questions connected with the 
plan for the establishment of the security zone, there arises 
first of all one important point which causes the situation 
of Germany and the other belligerent powers to appear 
disparate with respect to this: that is, while Germany has 
never pursued territorial aims on the American continent, 
Great Britain and France have, however, during the course 
of the last few centuries, established important possessions 
and bases on this continent and the islands offshore, the prac- 
tical importance of which also with respect to the questions 
under consideration here does not require any further ex- 
planation. By these exceptions to the Monroe Doctrine in 
favor of Great Britain and France the effect of the security 
zone desired by the neutral American Governments is funda- 
mentally and decisively impaired to start with. The in- 
equality in the situation of Germany and her adversaries 
that is produced hereby might perhaps be eliminated to 



78 

a certain extent if Great Britain and France would pledge 
themselves, under the guaranty of the American States, 
not to make the possessions and islands mentioned the 
starting points or bases for military operations ; even if that 
should come about the fact would still remain that one 
belligerent state, Canada, not only directly adjoins the zone 
mentioned in the west and the east, but that portions of 
Canadian territory are actually surrounded by the zone. 

(4) Despite the circumstances set forth above, the German 
Government, on its side, would be entirely ready to enter 
into a further exchange of ideas with the Governments of 
the American Republics regarding the putting into effect 
of the Declaration of Panama. However, the German Gov- 
ernment must assume from the reply of the British and 
French Governments, recently published by press and radio, 
that those two governments are not willing to take up seri- 
ously the idea of the security zone. The mere fact of the 
setting up of demands according to which entrance into the 
zone mentioned is not to be permitted to German warships, 
while the warships of the adversaries are officially to retain 
the right to enter the zone without restriction, shows such 
a lack of respect for the most elementary ideas of inter- 
national law and imputes to the governments of the Ameri- 
can states such a flagrant violation of neutrality that the 
German Government can see therein only the desire of the 
British and French Governments to do away with the basic 
idea of the security zone, first of all. 

(5) Although the German Government is entirely ready 
to enter into the proposals and suggestions of the American 
states in this field, the German Government can feel certain 
of a success of the continuation of the plan of the security 
zone only when the British and French position that has 
been made known is fundamentally revised. 

(Ibid. pp. 203-205.) 

INTERNATIONAL LAW AND THE DECLARATION 

OF PANAMA 

As previously indicated, there is evidence in the 
practice of nations to support the assertion that, 
in principle, neutral states may exercise their au- 



79 

thority over foreign ships beyond the territorial 
limits with the aim of protecting their shores from 
the effects of belligerent operations. How far may 
neutrals exercise their authority over the vessels of 
warring powers ? No definite answer can be given 
to this query. It must be remembered that the 
neutrals' jurisdiction is one strictly limited to the 
ends of national defense ; the neutral may not ex- 
ercise general authority over belligerent warships 
outside of the area of territorial waters, but has 
a right to adopt only those measures which clearly 
are required to safeguard neutral life and property. 
Upon the high seas, by immemorial right, the bel- 
ligerent may visit and search neutral craft, may 
capture enemy merchant ships, and may attack 
enemy warships. The neutral claims as to defense 
may thus come into direct conflict with a belliger- 
ent's rights upon the high seas. Neutral defense 
jurisdiction must thus be narrowly circumscribed 
and must not exceed the genuine requirements of 
domestic safety. The principle of contiguous 
zones for neutrals is probably crystallizing, but 
there is certainly no law concerning the extent of 
such areas. Belligerents have the legal right to 
challenge each specific assertion of jurisdiction,, 
and a neutrality zone cannot be said to have been 
accepted into international law as long as other na- 
tions withhold their assent. The ability of the neu- 
tral to patrol the area involved and to exercise the 
jurisdiction claimed is also an important factor. 
Belligerents naturally would be reluctant to refrain 
from hostility in wide areas in which a neutral 
could not possibly maintain any reasonable degree 
of authority. Some fairly close correspondence 



80 

must exist between the claims to authority and the 
ability to exercise authority. 

The Declaration of Panama is not a part of in- 
ternational law. Neutral jurisdiction for defense 
purposes over a part of the ocean extending 300 
miles from the coast is without precedent and has 
not been generally accepted. There is agreement 
probably upon the principle but not upon its appli- 
cation to such a tremendously wide belt. Great 
Britain, Prance, and Germany were acting within 
their legal rights when they refused to recognize 
the binding nature of the Panama Declaration. 
Only the status of that Declaration in international 
law is being discussed here; its feasibility politi- 
cally or otherwise is an entirely separate problem. 

APPLICATION TO THE PRESENT CASE 

Though the protective zone proclaimed by State 
K is of doubtful standing in international law, the 
commander of the cruiser Komlo must obey the 
orders of his home government and should use 
force if necessary to protect the Vera from attack 
by the Union. State II, however, may protest to 
State K and may claim that it has been deprived of 
one of its legitimate belligerent rights. State K 
cannot make international law unilaterally. Its 
protective zone is not necessarily binding upon bel- 
ligerents, and if these latter refuse to accord recog- 
nition to the zone, State K may well be held liable 
for an infringement upon the rights of the states at 
war. In this instance, however, a zone extending 
100 miles from the exits of a canal, that is, a zone 
proclaimed within a fairly limited area and having 
a close relation to the canal's defense requirements, 



81 

seems to have a much better chance of obtaining 
universal acceptance than the far more extensive 
claims put forth in the Declaration of Panama. 
The fact that State K could doubtless patrol such 
an area in reasonably effective fashion makes the 
project a rather feasible one. Therefore in time 
State K might persuade other nations to accord 
it recognition, but, at the moment, the belligerent 
powers are under no obligation to look upon it as 
law. 

NEUTRALITY OF THE BRITISH DOMINIONS 

Prior to the outbreak of war in September 1939, 
there was considerable discussion concerning the 
legal authority of the British Dominions to be neu- 
tral in any war in which Great Britain was a bel- 
ligerent. Common ties with the Crown, common 
British citizenship, and special military and naval 
rights of Great Britain within Dominion terri- 
tories were among the factors which seemed to pre- 
clude the possibility that some parts of the British 
Commonwealth of Nations could remain aloof 
from a conflict in which other portions of the Com- 
monwealth were engaged. The Union of South 
Africa, however, made provision in its Constitution 
in 1926 that the Union never could be at war with- 
out the consent of its own Parliament, and Article 
28 of the Irish Free State Constitution, which went 
into effect on December 29, 1937, likewise pro- 
vided that the Free State could not be involved 
in war save by its own will. (Constitution of Ire- 
land, Article 28, section 3, subsection 1. H. M. Sta- 
tionery Office, Constitutions of All Countries, Vol. 
I : The British Empire, p. 206.) By the Treaty of 



82 

April 25, 1938, between Great Britain and the Irish 
Free State (Eire, Treaty Series, 1938, No. 1) the 
former surrendered to the latter all avithority over 
the naval bases of Berehaven, Cobh, and Lough 
Swilly, ports which the British had kept within 
their jurisdiction in the Articles of Agreement of 
December 6, 1921, between the Free State and Great 
Britain. As a result of these constitutional provi- 
sions and treaty arrangements, the legal obstacles 
in the way of adoption of neutrality by the Free 
State and the Union of South Africa had been 
largely removed, though the obligations of the latter 
in regard to the naval base at Simondstown still 
continued to complicate matters for the Union 
Government. The other Dominions, Canada, Aus- 
tralia, and New Zealand, lacked legislation on the 
subject of neutrality. It was thought in some 
quarters that a Dominion might adopt a position 
of " passive" neutrality, a status with implications 
of much ambiguity for international law. 

In the main, however, the neutrality of the Do- 
minions depends upon the facts in any given situa- 
tion. If a Dominion declares that it is neutral 
and if the belligerents recognize it as neutral, then 
it is neutral. It is a question of actuality not 
theory, as was demonstrated by the events of Sep- 
tember 1939. On September 2, the Dail Eireann 
approved Prime Minister de Valera's policy of 
neutrality, and on September 3, the German Minis- 
ter to Dublin, Dr. Eduard Hempel, informed the 
President that the German Government would re- 
spect Eire's neutrality provided that neutrality 
was adhered to. Ireland's neutrality thus became 
a reality on the day on which hostilities were de- 
dared. (The London Times, September 4, 1939.) 



83 

A subject which arose for consideration shortly 
after the commencement of the war was merchant 
shipping registration. Since Ireland had declared 
neutrality and since this status had been immedi- 
ately accepted by all belligerents, it appeared at 
first that ships having Irish registry would prob- 
ably welcome the right to use the Irish flag since 
this should be respected as a neutral flag in accord 
with the provisions of international law. Indeed 
it would have been thought that Ireland would have 
been confronted with the problem of British ships 
seeking registry, a matter which would ordinarily 
present no problem, but which might draw sharp 
German protest if permitted after the outbreak 
of war. 

On the contrary, one ship was transferred from 
Irish to British registry while at sea and was 
sunk by a German submarine when allegedly flying 
the Irish flag, possibly innocently, since it might not 
have been informed of the change of registry. In 
addition, other ships were transferred and in some 
instances the transfers appear to have been made 
at the insistence of the crews, who were reported 
to have expressed a preference for sailing under 
the British flag. 

"In the dispatch of the 15th it was reported that three 
British and Irish Steam Packet Company mail ships had 
transferred from Irish to British registry, while on the 19th 
a similar transfer of three L. M. S. ships was announced and 
the probable transfer of other ships of the same line, then 
registered in Dublin, was predicted. In the case of the 
L. M. S. ships, the reason given for transfer was the refusal 
of the crews to sail, since otherwise they feared that, if sunk, 
their dependents would not be compensated for injury or 
loss of life." 

(The London Times, September 19, 1939.) 



84 

By the end of September, according to a report 
made to Dail Eireann by Mr. MacEntee, Minister 
of Commerce and Industry, 18 ships had been with- 
drawn from Irish and transferred to British regis- 
try. These shjps, all owned by two companies, 
incorporated in Great Britain, accounted for a 
large portion of the shipping tonnage which had 
been under Irish registry under the Merchant Ship- 
ping Act, 1894. (Eire, Dail Eireann, Parliamen- 
tary Debates, Official Report, September 27, 1939, 
col. 220-221.) 

The Parliament of the Union of South Africa 
on September 5, 1939, rejected the proposal of 
Prime Minister Hertzog that relations with the 
belligerent countries remain unchanged by a vote 
of 80 to 66, and the Union entered the war on the 
side of Great Britain imder the leadership of a new 
cabinet headed by General Smuts. (New York 
Times, September 6, 1939.) The Prime Ministers 
of Australia and New Zealand announced on Sep- 
tember 3 that their Dominions were at war with 
Germany (New York Times, September 4, 1939), 
and also at Ottawa on September 3, 1939, it was 
announced by the Government that Canada was at 
war with Germany according to the principle that 
"when Britain is at war, Canada is at war. " (New 
York Times, September 4, 1939.) However, this 
governmental statement was not followed by any 
formal declaration of war, Canada was not included 
as a belligerent in President Roosevelt's first neu- 
trality proclamation on September 5, and it was 
not until September 10, 1939, that Canada by Par- 
liamentary action formally became a belligerent. 
What the exact status of Canada was from Sep- 
tember 3 to September 10 is something for lawyers 



85 

to investigate, but the fact remains that Canada, 
along with three other Dominions, was not neutral 
at any time, and that the Irish Free State succeeded 
in its attempt to follow the line of neutrality. 

In Situation II, therefore, if the Dominion of 
Vinta is the Irish Free State, the Vincent is a 
cruiser of a neutral power and may remain indefi- 
nitely in the canal port. If Vinta, however, hap- 
pens to be Canada, New Zealand, Australia, or the 
Union of South Africa, the Vincent should be 
treated as a belligerent warship and should be sub- 
ject to all the neutrality regulations as to length 
of stay, repairs, supplies, etc. 

AIRPLANES IN NEUTRAL TERRITORY 

It can now be said to be international law that 
belligerent war planes have no right to fly into or 
through neutral jurisdiction. The subjacent neu- 
tral state has complete jurisdiction over the air, 
and the practice of neutrals in the last war and 
the provisions of codes and conventions since that 
time established the fact that the military planes 
of belligerents are barred from flight in neutral 
air. Naval airplanes attached to a warship are 
considered to be a part of the ship as long as they 
are in contact with the vessel. Such planes, there- 
fore, if actually on board a warship, may enter a 
neutral harbor, but they may not leave the war ves- 
sel to fly over the neutral's domain. (See Spaight, 
"Air Power and War Rights" pp. 421-433.) 
From 1914 to 1918 The Netherlands, Switzerland, 
and other neutrals barred belligerent military 
planes from their superadjacent air and enforced 
their prohibitions by gunfire. (See Naval War 
College, International Law Situations, 1936, pp. 



86 

74-75.) The United States proclaimed in 1915 
that : 

Aircraft of a belligerent power, public or private, are for- 
bidden to descend or arise with the jurisdiction of the United 
States at the Canal Zone or to pass through the air spaces 
above the lands and waters within said jurisdiction. (Naval 
War College, International Law Situations, 1915, p. 14; see 
also Proclamation of May 23, 1917 Naval War College, In- 
ternational Law Situations, 1917, p. 245.) 

The Commission of Jurists report of 1923 stipu- 
lates that: 

Article 40 : Belligerent military aircraft are forbidden to 
enter the jurisdiction of a neutral state. 

Article 41: Aircraft on board vessels of war, including 
aircraft carriers, shall be regarded as part of such vessels. 

Article 42 : A neutral government must use the means at 
its disposal to prevent the entry within its jurisdiction of 
belligerent military aircraft and to compel them to alight if 
they have entered such jurisdiction. 

A neutral government shall use the means at its disposal 
to intern any belligerent military aircraft which is within its 
jurisdiction after having alighted for any reason whatso- 
ever, together with its crew and the passengers,*if any. 

Harvard Draft Code, Rights and Duties of Neu- 
tral States in Naval and Aerial War, op. cit. 
declares : 

Article 94 : A neutral State shall require a belligerent mili- 
tary aircraft which is in its territory at the time of outbreak 
of war, to depart therefrom within twelve hours. The neu- 
tral State shall use the means at its disposal to intern 
belligerent military aircraft found in its territory after the 
expiration of this period. 

Article 95: A neutral State shall use the means at its 
disposal : 

(a) To prevent belligerent military aircraft from enter- 
ing its territory ; and 

(b) to compel them to alight if they have entered, and 



87 

(c) To intern them after they have alighted, whether the 
landing be voluntary or forced, together with persons and 
property on board. 

The Havana Convention on Maritime Neutrality, 
1928, (Hudson International Legislation Vol. IV r 
p. 2401), states in Article 14 that : 

The airships of belligerents shall not fly above the terri- 
tory or the territorial waters of neutrals if it is not in con- 
formity with the regulations of the latter. 

From the Danish rules on neutrality, Article 8 r 
of 1938 (Scandinavian Rules of Neutrality, Ameri- 
can Journal of International Law, October 1938, 
Official Documents, p. 145) comes again a similar 
statement declaratory of international law on this 
subject: 

Military aircraft of the belligerents, with the exception of 
aerial ambulances and aerial transports on board warships, 
shall not be admitted into Danish territory, except when 
regulations to the contrary apply or may become applicable 
so far as certain spaces are concerned conformable to the 
general principles of international law. 

In his proclamation prescribing regulations con- 
cerning neutrality in the Canal Zone, September 
5, 1939, (See the appendix of this volume for the 
complete proclamation) the President stated that : 

No belligerent aircraft shall be navigated into, within, or 
through the air spaces above the territory or waters of the 
Canal Zone. 

NEUTRAL TERRITORY AS A BASE 

One of the rules fundamental to the entire legal 
edifice of neutrality is that which specifies that neu- 
tral territory shall not be used as a base of military 
or naval operations, and neutral powers are re- 
quired to use the means at their disposal to prevent 



88 

such employment on the behalf of one of the bellig- 
erents. Expeditions are not to set forth from or 
sail from neutral jurisdiction, and neutrals must 
endeavor to prevent a belligerent fleet from using 
neutral territory as a base of supplies or as a source 
of military information and guidance. For these 
reasons belligerents may not erect or operate radio 
stations on neutral soil and must not attempt to 
obtain information by means of special signals or 
messengers coming from neutral jurisdiction. A 
neutral state is not bound to prevent the transmis- 
sion of information by means of cable, coastal com- 
munication or telecommunication other than radio. 
The distinction between radio, messengers and 
mechanical signal devices on the one hand, and 
cables, mail and telecommunications on the other, 
is based upon the fact that the former can be so 
easily employed for the relaying of important in- 
formation to a belligerent fleet or force outside of 
neutral jurisdiction, and also to the fact that such 
methods of communication are almost impossible for 
the other belligerent to intercept or prevent, where- 
as cables and the postal services can scarcely be 
used to direct belligerent operations from neutral 
territory and also may be cut or intercepted by 
the opposing belligerent. 

Neutrals are now under the obligation to prevent 
the fitting out and arming of planes and the de- 
parture of such military airplanes from their terri- 
tory, a rule comparable to that evolved in regard 
to surface vessels at the time of the Alabama Claims 
Arbitration in the last century. "An expedition 
may consist of a single airplane if manned and 
equipped in a manner which would enable it to 



89 

take part in hostilities/' (From the comment on 
Article 46 of the Committee of Jurists Report, 
1923, op. cit.) The Government of the United 
States was confronted with the problem of prevent- 
ing the departure of airplanes equipped and ready 
for military operations after the repeal of the so- 
called Arms Embargo on November 4, 1939. ( State- 
ment, in Appendix, on flights of military aircraft, 
December 7, 1939.) An airplane in a condition to 
make a hostile attack could not legally be permitted 
to leave American jurisdiction, and certainly the 
United States could not permit the departure of a 
military or naval belligerent plane carrying a mes- 
senger to a cruiser of a belligerent power. The 
rules in regard to the flight of belligerent military 
planes over neutral territory and those forbidding 
the use of neutral territory as a base would be 
violated if such an event were permitted to occur. 

NEUTRALITY LAW RESTRICTIONS ON USE OF 
AMERICAN PORTS : NOVEMBER 4, 1939 

Sec. 10 (a) — Whenever, during any war in which the 
United States is neutral, the President, or any person there- 
unto authorized by him, shall have cause to believe that any 
vessel, domestic or foreign, whether requiring clearance or 
not, is about to carry out of a port or from the jurisdiction 
of the United States, fuel, men, arms, ammunition, imple- 
ments of war, supplies, dispatches, or information to any 
warship, tender, or supply ship of a State named in a procla- 
mation issued under the authority of Section 1 (a), but the 
evidence is not deemed sufficient to justify forbidding the 
departure of the vessel as provided for by Section 1, Title V, 
Chapter 30, of the act approved June 15, 1917 (40 Stat. 217, 
221; U. S. C., 1934 Edition, Title 18, Sec. 31), and if, in the 
President's judgment, such action will serve to maintain 
peace between the United States and foreign States, or to 

247670—40 7 



90 

protect the commercial interests of the United States and 
its citizens, or to promote the security or neutrality of the 
United States, he shall have the power and it shall be his duty 
to require the owner, master, or person in command thereof, 
before departing from a port or from the jurisdiction of the 
United States, to give a bond to the United States, with suffi- 
cient sureties, in such amount as he shall deem proper, con- 
ditioned that the vessel will not deliver the men, or any fuel, 
supplies, dispatches, information, or any part of the cargo, 
to any warship, tender, or supplj T ship of a State named in a 
proclamation issued under the authority of Section 1 (a). 

(b) If the President, or any person thereunto authorized 
by him, shall find that a vessel, domestic or foreign, in a port 
of the United States has previously departed from a port or 
from the jurisdiction of the United States during such war 
and delivered men, fuel, supplies, dispatches, information 
or any part of its cargo to a warship, tender or supply ship of 
a State named in a proclamation issued under the authority 
of Section 1 (a) he may prohibit the departure of such 
vessel during the duration of the war. 

(c) Whenever the President shall have issued a procla- 
mation under Section 1 (a) he may, while such proclamation 
is in effect, require the owner, master or person in command 
of an} 7 vessel, foreign or domestic, before departing from the 
United States, to give a bond to the United States, with 
sufficient sureties, in such amount as he shall deem proper, 
conditioned that no alien seaman who arrived on such 
vessel shall remain in the United States for a longer period 
than that permitted under the regulations, as amended from 
time to time, issued pursuant to Section 33 of the Immigra- 
tion Act of Feb. 5, 1917 (U. S. C, Title 8, Sec. 168). Xot- 
withstanding the provisions of said section, he may issue 
regulations with respect to the landing of such seamen as 
he deems necessary to insure their departure either on such 
vessel or another vessel at the expense of such owner, master 
or person in command. 

(Public resolution No. 54, 76th Cong., 2d sess.) 



91 

PRESIDENT'S PROCLAMATION SEPTEMBER 5, 

1939 

Among the acts forbidden by proclamation of 
the President on September 5, 1939, were the fol- 
lowing : 

11. Knowingly beginning or setting on foot or providing 
or preparing a means for or furnishing the money for. or 
taking part in, any military or naval expedition or enterprise 
to be carried on from the territory or jurisdiction of the 
United States against the territory or dominion of a bel- 
ligerent. 

12. Dispatching from the United States, or any place sub- 
ject to the jurisdiction thereof, any vessel, domestic or for- 
eign, which is about to carry to a warship, tender or supply 
ship of a belligerent any fuel, arms, ammunition, men, sup- 
plies, dispatches or information shipped or received on board 
within the jurisdiction of the United States. 

(4 Federal Register, p. 3809.) 

CODES AND CONVENTIONS ON USE OF 
NEUTRAL TERRITORY 

Article 3 of Hague Convention V of 1907 and 
article 5 of Hague Convention XIII, 1907, contain 
provisions which forbid belligerents to erect wire- 
less telegraphy stations on neutral soil or to employ 
neutral ports and waters as a base of naval opera- 
tions. Article 3 of the Havana Convention on 
Maritime Neutrality, op. cit., contains a like pro- 
hibition. Article 46 of the previously cited Jurists 
Report deals with the subject of departure of bel- 
ligerent airplanes, and in section 2 of the same 
article provides that the neutral is bound "to pre- 
vent the departure of an aircraft the crew of which 
includes any member of the combatant forces of a 
belligerent power." Relevant articles from the 



92 

Harvard Draft Code on Neutrality, op. cit-, are as 
follows : 

Article 9: (1) a neutral State shall use the means at its 
disposal to prevent : 

(a) the erection or operation of any radio station 

within its jurisdiction by a belligerent; and 

(b) the transmission from its jurisdiction of military 

information destined for a belligerent by radio or 
by mechanical means of communication. 

(2) A neutral State is not bound to use the means at its 
disposal to prevent the transmission from its territory of 
military information destined for a belligerent by means of 
postal communication, telecommunications other than radio, 
messengers or other means of communication not provided 
for in section (1) of this article. 

Article 99 : A neutral state shall use the means at its dis- 
posal : 

(a) To prevent the fitting out or arming within its terri- 
tory of an aircraft which is intended to engage in hostile 
operations against a belligerent ; 

(b) To prevent, subject to Article 94, the flight from its 
territory of any aircraft which is intended to engage in hos- 
tile operations against a belligerent or which is intended to 
perform services of a military character for a belligerent. 

UNITED STATES TREATY WITH PANAMA 

On July 26, 1939, a general treaty between the 
United States and Panama, signed at Washington 
on March 2, 1936, was proclaimed by the President 
and went into effect on that day. This treaty pro- 
vided for a revision in certain particulars of the 
United States-Panama Treaty of 1903 (Treaty Se- 
ries No. 431) and also contained provisions sup- 
plementary to the earlier agreement. A summary 
of the articles of the treaty, as printed in the De- 
partment of State Bulletin (Vol. I, No. 5, July 29, 
1939, pp. 83-85) is as follows : 



93 

Article I establishes a basis of friendship and cooperation 
between Panama and the United States. 

Article II. The compliance of Panama with the provisions 
of article II of the convention of November 18, 1903, in 
turning over to the United States additional lands and wa- 
ters beyond those specifically mentioned there is recognized. 
The requirement of further lands and waters is considered 
improbable by both Governments, but they nevertheless 
recognize their joint obligation to insure the continuous 
operation of the Canal and agree to reach the necessary 
understanding should additional lands and waters be in fact 
necessary for this purpose. 

Article III contains various provisions restricting the 
commercial activities of the United States in the Canal Zone 
in order that Panama may take advantage of the. commercial 
opportunities inherent in its geographical situation. In this 
article are listed the classes of persons who may reside in 
the Canal Zone and the persons who are entitled to make 
purchases in the Canal Zone commissaries. 

Article IV provides for the free entry of merchandise 
entering Panama destined for agencies of the United States 
Government and provides that no taxes shall be imposed 
upon persons in the service of the United States entering 
Panama or upon residents of Panama entering the Canal 
Zone. 

Article V provides that port facilities other than those 
owned by the Panama Railroad Co. in the ports of Panama 
and Colon may be operated only by Panama ; exempts from 
Panamanian taxation vessels using the Canal which do not 
touch at ports under Panamanian jurisdiction; and provides 
for the establishment of Panamanian customhouses within 
the Canal Zone. The United States undertakes to adopt 
such administrative regulations as may be necessary to assist 
Panama in controlling immigration into that country. 

Article VI revises article VII of the convention of No- 
vember 18, 1903, in that the United States renounces the 
right to acquire, by the exercise of the right of eminent 
domain, lands or properties in or near the cities of Panama 
and Colon, although retaining the right to purchase nec- 
essary lands or properties. The third paragraph of the said 



94 

article VII, granting the United States the right to inter- 
vene in the cities of Panama and Colon and the territory 
adjacent thereto for the purpose of maintaining order, is 
abrogated. 

Article VII provides that beginning with the 1934 annuity 
payment the annual amounts of these payments shall be four 
hundred thirty thousand balboas (B/430,000.00) or the equi- 
valent thereof. In a supplementary exchange of notes the 
balboa is defined as having a gold content equal to that of 
the present United States dollar. 

Article VIII provides for a corridor under Panamanian 
jurisdiction to connect the city of Colon with other territory 
of Panama. 

Article IX establishes a similar corridor under American 
jurisdiction to connect the Madden Dam area with the Canal 
Zone proper. 

Article X provides that in case of emergency both Govern- 
ments will take such measures of prevention and defense as 
they may consider necessary for the protection of their com- 
mon interests. 

Article XI reserves to each country all rights enjoyed by 
virtue of treaties now in force between the two countries, and 
preserves all obligations therein established, with the excep- 
tion of those rights and obligations specifically revised by 
the present treaty. The juridical status of the Canal Zone, as 
defined in article III of the 1903 convention, thereby remains 
unaltered. 

Article XII provides that the treaty shall take effect im- 
mediately on the exchange of ratifications in Washington. 

There were 16 exchanges of notes signed on March 2, 1936, 
and 1 signed on February 1, 1939, interpreting and defining 
certain provisions of the General Treaty. These notes will 
be printed in Treaty Series No. 945. 

On the occasion of the exchange of ratifications of the Gen- 
eral Treaty Between the United States and Panama, signed 
March 2, 1936, the Secretary of State made the following 
remarks : 

"The present occasion marks an important milestone in our 
relations with the Republic of Panama. It will be recalled 
that the convention of 1903 was drafted at a time when the 



95 

Panama Canal was only a dream and that consequently it was 
impossible to foresee and to provide for the many varied 
phases of our relations with Panama which would spring 
from the continuous operation of the Canal and its attendant 
works and establishments. 

"Dissatisfaction on the part of the Republic of Panama 
with certain of the provisions of the convention of 1903 arose 
early, and various attempts were made, many of them success- 
ful, to solve certain specific problems either informally or by 
agreement. The present General Treaty is the result of many 
painstaking hours of negotiation and preparation. It is a 
document which we hope responds to the genuine and legiti- 
mate aspirations of the Government and people of Panama 
yet which not only continues existing safeguards and provi- 
sions for the operation, maintenance, sanitation, and protec- 
tion of the Canal from our point of view, but by associating 
the Republic of Panama in this work, accords even greater 
security and efficiency to the Canal, either in its present form 
or should it become necessary, in an expanded form." 

(Treaty Series, No. 945.) 

APPLICATION TO THE PRESENT CASE 

Inasmuch as State K has the same rights in the 
Canal Zone leased from State L as those possessed 
by the United States in the Panama Canal Zone, 
State K, though not possessing title to the zone, 
has all the authority which it would have if it were 
the true sovereign. State K as a neutral is there- 
fore responsible for what transpires in the zone 
and must uphold the obligations of a neutral under 
international law. The Vigo, a belligerent cruiser, 
had no right to send the airplane V-l, a military 
craft, into neutral territory and the V-l should 
have been interned by State K authorities. Not 
only was the initial entry of the V-l a violation 
of the neutrality of State K, but also its departure 
was an illegal act which State K should have used 



96 

the means at its disposal to prevent. The V-l, 
equipped for war andcapable of engaging in hostile 
action, constituted an expedition. Transportation 
of the naval attache of the legation of the belliger- 
ent State V who had important information to 
transmit to the commander of the Vigo, rendered 
the action all the more culpable. The territory of 
State K was being used as a base both by the depar- 
ture of a plane ready for war use and by the 
sending of a special messenger conveying military 
communications to the commander of a belligerent 
warship at sea. 

It is true that the attache enjoys full diplomatic 
immunities and it is also true that State K is under 
no obligation to prevent couriers from carrying 
messages to a foreign government, but this last 
statement refers to regular diplomatic correspond- 
ence and not to directing operations of ships at 
sea. The attache is not permitted under interna- 
tional law to engage in activities which involve vio- 
lations of the neutrality of the state to which he 
is accredited. Had the Vigo come into a canal 
port, the attache could legally have gone on board 
if he had so desired, but flying out to a warship 
of his nation is an entirely different matter and 
one that very definitely turns the territory of the 
zone into a belligerent base of operations. If the 
Vigo had been in distress, it could have come into 
port itself or else it could have radioed to those on 
shore for help and needed supplies. The authorities 
of neutral State K are bound to succor and relieve 
the distress, if genuine, of vessels at sea and might 
have sent out one of their own planes or ships to 
render aid. Officials of State K, however, must in 
no way implement the fighting capacity of the Vigo 



97 

and must draw the line very carefully between aid 
to a ship in distress and permitting a belligerent 
warship to increase its fighting ability. In this 
situation, therefore, State K must not countenance 
the flight of a belligerent naval airplane into its 
jurisdiction and is under an obligation to prevent 
such craft and important messages from being 
transmitted to a belligerent fleet off its coast. The 
tactics of the Vigo, the V-l and the naval attache 
are gravely suspect. The needed medical supplies 
could have been obtained in ways which did not 
involve the neutrality rights and obligations of 
State K in the Canal Zone. 

RESUME 

The principle of contiguous zones appears to 
have been established in international law, but no 
consensus exists as to what the widths of such areas, 
especially those for defense purposes, ought to be. 
The Declaration of Panama which asserted juris- 
diction for purposes of neutrality patrol over parts 
of the sea to a distance 300 miles from the shore 
is not binding in international law, though the 
proclamation may well have been justified for polit- 
ical or other reasons. In regard to the status of 
the British Dominions, an era of academic ques- 
tionings came to an end when the Irish Free State 
declared its neutrality on September 3, 1939, and 
was regarded as a neutral by all the belligerents. 
It has been proved that the British Dominions can 
be neutral because one of them actually has been 
neutral. Concerning other aspects of neutrality 
the introduction of the airplane has resulted in the 
making of some new rules and in the adaptation of 



98 

some of the former ones, to a new instrument of 
warfare. Belligerent military airplanes, unlike 
belligerent surface craft, are barred entirely from 
neutral jurisdiction. The actual practice of states 
in the last war led to the creation of this new pro- 
hibition. When it come to the departure of planes 
from neutral jurisdiction, the rules in regard to 
" fitting out and arming" have been taken over and 
applied to aircraft. Neutrals must use the means 
at their disposal to keep planes from leaving which 
are in a condition to take part in a military 
operation. 

SOLUTION 

(a) The commander of the Komlo should act to 
protect the Vera, thus conforming to the domestic 
law of his own state. The legality of the protective 
zone under international law depends upon its ac- 
ceptance by other powers. In this instance, there- 
fore, the protective zone is not recognized by inter- 
national law and State U may attempt to hold 
State K internationally responsible. 

(b) It is legally possible for Vinta to be a neutral 
state. If the Dominion of Vinta is recognized as 
a neutral by the belligerents, the Vincent may re- 
main in the canal ports indefinitely. 

(c) The V-l has no right to enter neutral juris- 
diction and the authorities of State K in the Canal 
Zone should have used the means at their disposal 
to prevent the departure of V-l. 

(d) States L, U, and V are not obliged to rec- 
ognize the zone and their protests are legally valid. 



APPENDIXES 



Page 

I. Neutrality Law of May 1, 1937 101 

II. Neutrality Act of November 4, 1939 109 

III. Proclamation of Neutrality (General) by the President, 

September5, 1939 123 

IV. Regulations Governing the Enforcement of Neutrality- 132 
V. Proclamation (Special) : Export of Arms, Ammunition, 

and Implements of War, September 5, 1939 134 

VI. Regulations Concerning Neutrality In the Canal Zone__ 139 
VII. Regulations Governing The Passage of Vessels Through 

the Panama Canal 142 

VIII. Proclamation of a National Emergency 144 

IX. Proclamation of a State of War Under Act of November 

4, 1939 145 

X. Proclamation Defining Combat Areas 146 

XI. Proclamation Concerning Submarines November 4, 
1939. (See main text of this volume, page 48.) 

XII. Regulations Concerning Travel on Belligerent Vessels. _ 149 

XIII. Regulations Concerning Arms on American Vessels 151 

XIV. Flights of Belligerent Military Aircraft 152 

XV. Regulations Concerning Travel Into Combat Areas 153 

XVI. Travel on Belligerent Vessels in the Bay of Fundy 154 

XVII. Proclamation Defining Combat Area, April 10, 1940 154 

99 



APPENDIXES 

7. Neutrality Latv of May 1, 1937. 

(Adopted by Congress, April 29, 1937, Public Kesolution 
No. 27, 75th Congress, Chapter 146, 1st Session, S. J. Res. 51. 
Act printed entire except for Section 5 on the National 
Munitions Control Board and Sections 12, 13, 14, and 15.) 

EXPORT OF ARMS, AMMUNITION, AND IMPLEMENTS OF WAR 

Section 1. (a) Whenever the President shall find that 
there exists a state of war between, or among, two or more 
foreign States, the President shall proclaim such fact, and 
it shall thereafter be unlawful to export, or attempt to ex- 
port, or cause to be exported, arms, ammunition, or imple- 
ments of war from any place in the United States to any 
belligerent State named in such proclamation, or to any 
neutral State for transshipment to, or for the use of, any 
such belligerent State. 

(b) The President shall, from time to time, by proclama- 
tion extend such embargo upon the export of arms, ammuni- 
tion, or implements of war to other States as and when they 
may become involved in such war. 

(c) Whenever the President shall find that a state of civil 
strife exists in a foreign State and that such civil strife 
is of a magnitude or is being conducted under such condi- 
tions that the export of arms, ammunition, or implements of 
war from the United States to such foreign State would 
threaten or endanger the peace of the United States, the 
President shall proclaim such fact, and it shall thereafter 
be unlawful to export, or attempt to export, or cause to be 
exported, arms, ammunition, or implements of war from 
any place in the United States to such foreign State, or to 
any neutral State for transshipment to, or for the use of, 
such foreign State. 

(d) The President shall, from time to time by proclama- 
tion, definitely enumerate the arms, ammunition, and imple- 

101 



102 APPP^NDIXES 

ments of war, the export of which is prohibited by this 
section. The arms, ammunition, and implements of war so 
enumerated shall include those enumerated in the President's 
proclamation numbered 2163, of April 10, 1936, but shall not 
include raw materials or any other articles or materials not of 
the same general character as those enumerated in the said 
proclamation, and in the Convention for the Supervision of 
the International Trade in Arms and Ammunition and in 
Implements of War, signed at Geneva, June 17, 1925. 

(e) Whoever, in violation of any of the provisions of this 
Act, shall export, or attempt to export, or cause to be ex- 
ported, arms, ammunition, or implements of war from the 
United States shall be fined not more than $10,000, or im- 
prisoned not more than five years, or both, and the property, 
vessel, or vehicle containing the same shall be subject to the 
provisions of sections 1 to 8, inclusive, title 6, chapter 30, 
of the Act approved June 15, 1917 (40 Stat, 223-225; U. S. 
C, 1934 ed., title 22, sees. 238-245). 

(f ) In the case of the forfeiture of any arms, ammunition, 
or implements of war by reason of a violation of this Act, 
no public or private sale shall be required; but such arms, 
ammunition, or implements of war shall be delivered to the 
Secretary of War for such use or disposal thereof as shall 
be approved by the President of the United States. 

(g) Whenever, in the judgment of the President, the con- 
ditions which have caused him to issue any proclamation 
under the authority of this section have ceased to exist, he 
shall revoke the same, and the provisions of this section 
shall thereupon cease to apply with respect to the State or 
States named in such proclamation, except with respect to 
offenses committed, or forfeitures incurred, prior to such 
revocation. 

EXPORT OF OTHER ARTICLES AND MATERIALS 

Sec. 2. (a) Whenever the President shall have issued a 
proclamation under the authority of section i of this Act and 
he shall thereafter find that the placing of restrictions on 
the shipment of certain articles or materials in addition to 
arms, ammunition, and implements of war from the United 
States, to belligerent States, or to a State wherein civil 



APPENDIXES 103 

strife exists, is necessary to promote the security or preserve 
the peace of the United States or to protect the lives of 
citizens of the United States, he shall so proclaim, and it 
shall thereafter be unlawful, except under such limitations 
and exceptions as the President may prescribe as to lakes, 
rivers, and inland waters bordering on the United States, 
and as to transportation on or over lands bordering on the 
United States, for any American vessel to carry such articles 
or materials to any belligerent State, or to any State wherein 
civil strife exists, named in such proclamation issued under 
the authority of section i of this Act, or to> any neutral State 
for transshipment to, or for the use of, any such belligerent 
State or any such State wherein civil strife exists. The Presi- 
dent shall by proclamation from time to time definitely enu- 
merate the articles and materials which it shall be unlawful 
for American vessels to so transport. 

(b) Whenever the President shall have issued a proclama- 
tion under the authority of section i of this Act and he shall 
thereafter find that the placing of restrictions on the export 
of articles or materials from the United States to belligerent 
States, or to a State wherein civil strife exists, is necessary 
to promote the security or preserve the peace of the United 
States or to protect the lives or commerce of citizens of the 
United States, he shall so proclaim, and it shall thereafter 
be unlawful, except under such limitations and exceptions 
as the President may prescribe as to lakes, rivers, and inland 
waters bordering on the United States, and as to transpor- 
tation on or over land bordering on the United States, to 
export or transport, or attempt to export or transport or 
cause to be exported or transported, from the United States 
to any belligerent State, or to any State wherein civil strife 
exists, named in such proclamation issued under the au- 
thority of section i of this Act, or to any neutral State for 
transshipment to, or for the use of, any such belligerent 
State or any such State wherein civil strife exists, any articles 
or materials whatever until all right, title, and interest 
therein shall have been transferred to some foreign govern- 
ment, agency, institution, association, partnership, corpora- 
tion, or national. The shipper of such articles or materials 
shall be required to file with the collector of the port from 



104 APPENDIXES 

which they are to be exported a declaration under oath that 
there exists in citizens of the United States no right, title, 
or interest in such articles or materials, or to comply with 
such rules and regulations as shall be promulgated from 
time to time by the President. Any such declaration so filed 
shall be a conclusive estoppel against any claim of any 
citizen of the United States of right, title, or interest in such 
articles or materials. Insurance written by underwriters on 
any articles or materials the export of which is prohibited 
by this Act, or on articles or materials carried by an Ameri- 
can vessel in violation of subsection (a) of this section, shall 
not be deemed an American interest therein, and no insur- 
ance policy issued on such articles or materials and no loss 
incurred thereunder or by the owner of the vessel carrying 
the same shall be made a basis of any claim put forward by 
the Government of the United States. 

(c) The President shall from time to time by proclama- 
tion extend such restrictions as are imposed under the au- 
thority of this section to other States as and when they may 
be declared to become belligerent States under proclamations 
issued under the authority of section i of this Act. 

(d) The President may from time to time change, modify, 
or revoke in whole or in part any proclamations issued by 
him under the authority of this section. 

(e) Except with respect to offenses committed, or for- 
feitures incurred, prior to May 1, 1939, this section and all 
proclamations issued thereunder shall not be effective after 
May 1, 1939. 

FINANCIAL TRANSACTIONS 

Sec. 3. (a) Whenever the President shall have issued a 
proclamation under the authority of section i of this Act, it 
shall thereafter be unlawful for any person within the 
United States to purchase, sell, or exchange bonds, securities, 
or other obligations of the government of any belligerent 
State or of any State wherein civil strife exists, named in 
such proclamation, or of any political subdivision of any 
such State, or of any person acting for or on behalf of the 
government of any such State, or of any faction or asserted 
government within any such State wherein civil strife exists, 



APPENDIXES 105 

or of any person acting for or on behalf of any faction or 
asserted government within any such State wherein civil 
strife exists, issued after the date of such proclamation, or 
to make any loan or extend any credit to any such govern- 
ment, political subdivision, faction, asserted government, or 
person, or to solicit or receive any contribution for any such 
government, political subdivision, faction, asserted govern- 
ment, or person : Provided, That if the President shall find 
that such action will serve to protect the commerical or 
other interests of the United States or its citizens, he may, in 
his discretion, and to such extent and under such regulations 
as he may prescribe, except from the operation of this section 
ordinary commercial credits and short-time obligations in 
aid of legal transactions and of a character customarily used 
in normal peacetime commercial transactions. Nothing in 
this subsection shall be construed to prohibit the solicitation 
or collection of funds to be used for medical aid and assist- 
ance, or for food and clothing to relieve human suffering, 
when such solicitation or collection of funds is made on behalf 
of and for use by any person or organization which is not act- 
ing for or on behalf of any such government, political sub- 
division, faction, or asserted government, but all such solic- 
itations and collections of funds shall be subject to the ap- 
proval of the President and shall be made under such rules 
and regulations as he shall prescribe. 

(b) The provisions of this section shall not apply to a 
renewal or adjustment of such indebtedness as may exist 
on the date of the President's proclamation. 

(c) Whoever shall violate the provisions of this section or 
of any regulations issued hereunder shall, upon conviction 
thereof, be fined not more than $50,000 or imprisoned for 
not more than five years, or both. Should the violation be 
by a corporation, organization, or association, each officer 
or agent thereof participating in the violation may be liable 
to the penalty herein prescribed. 

(d) Whenever the President shall have revoked any such 
proclamation issued under the authority of section i of this 
Act, the provisions of this section and of any regulations 
issued by the President hereunder shall thereupon cease to 

247670—40 8 



106 APPENDIXES 

apply with respect to the State or States named in such 
proclamation, except with respect to offenses committed 
prior to such revocation. 

EXCEPTIONS — AMERICAN REPUBLICS 

Sec. 4. This Act shall not apply to an American republic or 
republics engaged in war against a non-American State or 
States, provided the American republic is not cooperating 
with a non-American State or States in such war. 

AMERICAN VESSELS PROHIBITED FROM CARRYING ARMS TO BELLIG- 
ERENT STATES 

Sec. 6. (a) Whenever the President shall have issued a 
proclamation under the authority of section I of this Act, it 
shall thereafter be unlawful, until such proclamation is re- 
voked, for any American vessel to carry any arms, ammuni- 
tion, or implements of war to any belligerent State, or to any 
State wherein civil strife exists, named in such proclamation, 
or to any neutral State for transshipment to, or for the use of, 
any such belligerent State or any such State wherein civil 
strife exists. 

(b) Whoever, in violation of the provisions of this section, 
shall take, or attempt to take, or shall authorize, hire, or solicit 
another to take, any American vessel carrying such cargo out 
of port or from the jurisdiction of the United States shall be 
fined not more than $10,000, or imprisoned not more than five 
years, or both : and in addition, such vessel, and her tackle, 
apparel, furniture, and equipment, and the arms, ammunition, 
and implements of war on board, shall be forfeited to the 
United States. 

USE OF AMERICAN PORTS AS BASE OF SUPPLY 

Sec. 7. (a ) Whenever, during any war in which the United 
States is neutral, the President, or any person thereunto au- 
thorized by him, shall have cause to believe that any vessel, do- 
mestic or foreign, whether requiring clearance or not, is about 
to carry out of a port of the United States, fuel, men, arms, 
ammunition, implements of war, or other supplies to any war- 
ship, tender, or supply ship of a belligerent State, but the evi- 
dence is not deemed sufficient to justify forbidding the 



APPENDIXES 107 

departure of the vessel as provided for by section I, title V, 
chapter 30, of the Act approved June 15, 1917 (40 Stat. 217, 
221 ; U. S. C, 1934 ed., title 18, sec. 31), and if, in the Presi- 
dent's judgment, such action will serve to maintain peace be- 
tween the United States and foreign States, or to protect the 
commercial interests of the United States and its citizens, or 
to promote the security or neutrality of the United States, he 
shall have the power and it shall be his duty to require the 
owner, master, or person in command thereof, before depart- 
ing from a port of the United States, to give a bond to the 
United States, with sufficient sureties, in such amount as he 
shall deem proper, conditioned that the vessel will not deliver 
the men. or any part of the cargo, to any warship, tender, or 
supply ship of a belligerent State. 

(b) If the President, or any person thereunto authorized 
by him. shall find that a vessel, domestic or foreign, in a port 
of the United States, has previously cleared from a port of the 
United States during such war and delivered its cargo or any 
part thereof to a warship, tender, or supply ship of a belliger- 
ent State, he may prohibit the departure of such vessel during 
the duration of the war. 

SUBMARINES AND ARMED MERCHANT VESSELS 

Sec. 8. Whenever, during any war in which the United 
States is neutral, the President shall find that special restric- 
tions placed on the use of the ports and territorial waters of 
the United States by the submarines or armed merchant ves- 
sels of a foreign State, will serve to maintain peace between the 
United States and foreign States, or to protect the commercial 
interests of the United States and its citizens, or to promote 
the security of the United States, and shall make proclama- 
tion thereof, it shall thereafter be unlawful for any such sub- 
marine or armed merchant vessel to enter a port or the terri- 
torial waters of the United States or to depart therefrom, ex- 
cept under such conditions and subject to such limitations as 
the President may prescribe. Whenever, in his judgment, 
the conditions which have caused him to issue his proclama- 
tion have ceased to exist, he shall revoke his proclamation and 
the provisions of this section shall thereupon cease to apply. 



108 APPENDIXES 

TRAVEL ON VESSELS OF BELLIGERENT STATES 

Sec. 9. Whenever the President shall have issued a proc- 
lamation under the authority of section 1 of this Act it shall 
thereafter be unlawful for any citizen of the United States 
to travel on any vessel of the State or States named in 
such proclamation, except in accordance with such rules 
and regulations as the President shall prescribe: Provided, 
however, That the provisions of this section shall not apply 
to a citizen of the United States traveling on a vessel whose 
voyage was begun in advance of the date of the President's 
proclamation, and who had no opportunity to discontinue 
his voyage after that date : Arid provided further, That they 
shall not apply under ninety days after the date of the Presi- 
dent's proclamation to a citizen of the United States return- 
ing from a foreign State to the United States. Whenever, 
in the President's judgment, the conditions which have 
caused him to issue his proclamation have ceased to exist, 
he shall revoke his proclamation and the provisions of this 
section shall thereupon cease to apply with respect to the 
State or States named in such proclamation, except with 
respect to offenses committed prior to such revocation. 

ARMING OF AMERICAN MERCHANT VESSELS PROHIBITED 

Sec. 10. Whenever the President shall have issued a proc- 
lamation under the authority of section 1, it shall thereafter 
be unlawful, until such proclamation is revoked, for any 
American vessel engaged in commerce with any belligerent 
State, or any State wherein civil strife exists, named in 
such proclamation, to be armed or to carry any armament, 
arms, ammunition, or implements of war, except small arms 
and ammunition therefor which the President may deem 
necessary and shall publicly designate for the preservation 
of discipline aboard such vessels. 

REGULATIONS 

Sec. 11. The President may, from time to time, promul- 
gate such rules and regulations, not inconsistent with law, 
as may be necessary and proper to carry out any of the 
provisions of this Act; and he may exercise any power 



APPENDIXES 1 09 

or authority conferred on him by this Act through such 
officer or officers, or agency or agencies, as he shall direct. 

II. Neutrality Act of November 4, 1939. 

(Public Kesolution No. 54, 76th Cong., 2d sess.) 

Whereas the United States, desiring to preserve its neu- 
trality in wars between foreign states and desiring also to 
avoid involvement therein, voluntarily imposes upon its 
nationals by domestic legislation the restrictions set out in 
this joint resolution ; and 

Whereas by so doing the United States waives none of its 
own rights or privileges, or those of any of its nationals, 
under international law, and expressly reserves all the 
rights and privileges to which it and its nationals are en- 
titled under the law of nations ; and 

Whereas the United States hereby expressly reserves the 
right to repeal, change, or modify this joint resolution or 
any other domestic legislation in the interests of the peace, 
security, or welfare of the United States and its people: 
Therefore be it 

Resolved by the Senate and House of Representatives of 
the United States of America in Congress assembled, 

PROCLAMATION OF A STATE OF WAR BETWEEN* FOREIGN STATES 

Section 1. (a) That whenever the President, or the 
Congress by concurrent resolution shall find that there 
exists a state of war between foreign states, and that it is 
necessary to promote the security or preserve the peace of 
the United States or to protect the lives of citizens of the 
United States, the President shall issue a proclamation nam- 
ing the states involved; and he shall, from time to time, by 
proclamation, name other states as and when they may be- 
come involved in the war. 

(b) Whenever the state of war which shall have caused 
the President to issue any proclamation under the authority 
of this section shall have ceased to exist with respect to any 
state named in such proclamation, he shall revoke such procla- 
mation with respect to such state. 



110 APPENDIXES 

COMMERCE WITH STATES ENGAGED IN ARMED CONFLICT 

Sec. 2. (a) Whenever the President shall have issued a. 
proclamation under the authority of section 1 (a) it shall 
thereafter be unlawful for any American vessel to carry 
any passengers or any articles or materials to any state 
named in such proclamation. 

(b) Whoever shall violate any of the provisions of sub- 
section (a) of this section or of any regulations issued there- 
under shall, upon conviction thereof, be fined not more than 
$50,000 or imprisoned for not more than five years, or 
both. Should the violation be by a corporation, organiza- 
tion, or association, each officer or director thereof partici- 
pating in the violation shall be liable to the penalty herein 
prescribed. 

(c) Whenever the President shall have issued a procla- 
mation under the authority of Section 1 (a) it shall there- 
after be unlawful to export or transport, or attempt to 
export or transport, or cause to be exported or transported,, 
from the United States to any State named in such procla- 
mation, any articles or materials (except, copyright articles 
or materials) until all right, title and interest therein shall 
have been transferred to some foreign government, agency, 
institution, association, partnership, corporation, or national- 
Issuance of a bill of lading under which title to the goods 

shipped passes to the purchaser unconditionally upon de- 
livery of the goods to carrier, shall constitute a transfer of 
all right, title, and interest therein within the meaning of 
this subsection. The shipper of such articles or materials 
shall be required to file with the collector of the port from 
or through which they are to be exported a declaration under 
oath that he has complied with the requirements of this sub- 
section with respect to transfer of right, title, and interest 
in such articles or materials and that he will comply with 
such rules and regulations as shall be promulgated from 
time to time. Any such declaration so filed shall be a con- 
clusive estoppel against any claim of any citizen of the- 
United States having knowledge of such shipment or of such 
declaration of right, title, or interest in such articles or 
materials. No loss incurred by any such citizen (1) in con- 
nection with the sale or transfer of right, title, and interest 



APPENDIXES 111 

in any such articles or materials or (2) in connection with 
the exportation or transportation of any such copyrighted 
articles or materials, shall be made the basis of any claim 
put forward by the Government of the United States. 

(d) Insurance written by underwriters on articles or ma- 
terials included in shipments which are subject to restric- 
tions under the provisions of this joint resolution, and on 
vessels carrying such shipments, shall not be deemed an 
American interest therein, and no insurance policy issued on 
such articles or materials, or vessels, and no loss incurred 
thereunder or by the owners of such vessels, shall be made 
the basis of any claim put forward by the Government of 
the United States. 

(e) Whenever any proclamation issued under the neu- 
trality of Section 1 (a) shall have been revoked with respect 
to any State the provisions of this section shall thereupon 
cease to apply with respect to such State, except as to offenses 
committed prior to such revocation. 

(f) The provisions of subsection (a) of this section shall 
not apply to transportation by American vessels on or over 
lakes, rivers and inland waters bordering on the United 
States, or to transportation by aircraft on or over lands 
bordering on the United States ; and the provisions of sub- 
section (c) of this section shall not apply (1) to such trans- 
portation of any articles or materials other than articles 
listed in a proclamation issued under the authority of Section 
12 (i) or to any other transportation on or over lands border- 
ing on the United States of any articles or materials other 
than articles listed in a proclamation issued under the au- 
thority of Section 12 (i). And the provisions of subsections 
(a) and (c) of this section shall not apply to the transpor- 
tation referred to in this subsection and subsections (g) and 
(h) of any articles or materials listed in a proclamation 
issued under the authority of Section 12 (i) if the articles 
or materials so listed are to be used exclusively by American 
vessels, aircraft, or other vehicles in connection with their 
operation and maintenance. 

(g) The provisions of subsections (a) and (c) of this sec- 
tion shall not apply to transportation by American vessels 
(other than aircraft) of mail, passengers, or any articles or 



112 APPENDIXES 

materials (except articles or materials listed in a proclama- 
tion issued under the authority of section 12 (i) (1) to any 
port in the Western Hemisphere north of thirty-five degrees 
north latitude, (2) to any port in the Western Hemisphere 
north of thirty-five degrees north latitude and west of sixty- 
six degrees west longitude, (3) to any port on the Pacific 
or Indian Oceans, including the China Sea, the Tasman 
Sea, the Bay of Bengal and the Arabian Sea and any other 
dependent waters of either of such oceans, seas or bays, or 
(4) to any port on the Atlantic Ocean or its dependent 
waters south of thirty degrees north latitude. The excep- 
tions contained in this subsection shall not apply to any 
such port which is included within a combat area as defined 
in section 3, which applies to such vessels. 

(h) The provisions of subsections (a) and (c) of this 
section shall not apply to transportation by aircraft of mail, 
passengers or any articles or materials (except articles or 
materials listed in a proclamation issued under the authority 
of section 12 (i) (1) to any port in the Western Hemisphere, 
or (2) to any port on the Pacific or Indian Oceans, including 
the China Sea, the Tasman Sea, the Bay of Bengal and the 
Arabian Sea and any other dependent waters of either such 
oceans, seas or bays. The exceptions contained in this sub- 
section shall not apply to any such port which is included 
within a combat area as defined in section 3, which applies 
to such aircraft. 

(i) Every American vessel to which the provisions of sub- 
sections (g) and (h) apply and every neutral vessel to which 
the provisions of subsection (i) apply shall, before departing 
from a port of the United States, file with the collector of 
customs of the port of departure, or if there is no such 
collector at such port, then with the nearest collector of 
customs, a sworn statement (1) containing a complete list 
of all the articles and materials carried as cargo by such 
vessel, and the names and addresses of the consignees of 
all such articles and materials, and (2) stating the ports at 
which such articles and materials are to be unloaded and the 
ports of call of such vessel. All transportation referred to in 
subsections (f), (g), (h) and (i) of this section shall be 
subject to such restrictions, rules and regulations as the 



APPENDIXES 113 

President shall prescribe ; but no loss incurred in connection 
with any transportation excepted under the provisions of 
subsections (g), (h) and (i) of this section shall be made 
the basis of any claim put forward by the Government of 
the United States. 

(j) Whenever all proclamations issued under the author- 
ity of section 1 (a) shall have been revoked, the provisions 
of subsections (f), (g), (h) and (i) shall expire. 

(k) The provisions of this section shall not apply to the 
current voyage of any American vessel which has cleared 
for a foreign port and has departed from a port or from 
the jurisdiction of the United States in advance of (1) the 
date of enactment of this joint resolution, or (2) any proc- 
lamation issued after such date under the authority of 
Section 1 (a) of this Joint Resolution; but any such vessel 
shall proceed at its own risk after either of such dates, and 
no loss incurred in connection with any such vessel or its 
cargo after either of such dates shall be made the basis of 
any claim put forward by the Government of the United 
States. 

(1) The provisions of subsection (c) of this section shall 
not apply to the transportation by a neutral vessel to any 
port referred to in subsection (g) of this section of any 
articles or materials [except articles or materials listed in 
a proclamation referred to in it or issued under the authority 
of Section 12 (i)] so long as such port is not included 
within a combat area as defined in Section 3 which applies 
to American vessels. 

COMBAT AREAS 

Section 3. (a) Whenever the President shall have issued 
a proclamation under the authority of 1 (a), and he shall 
thereafter find that the protection of citizens of the United 
States so requires, he shall, by proclamation, define combat 
areas, and thereafter it shall be unlawful, except under such 
rules and regulations as may be prescribed, for any citizen 
of the United States or any American vessel to proceed into 
or through any such combat area. The combat areas so 
defined may be made to apply to surface vessels or aircraft, 
or both. 



114 APPENDIXES 

(b) In case of the violation of any of the provisions of 
this section by any American vessel, or any owner or officer 
thereof, such vessel, owner or officer shall be fined not more 
than $50,000 or imprisoned for not more than five years, or 
both. Should the owner of such vessel be a corporation, 
organization or association, each officer or director partici- 
pating in the violation shall be liable to the penalty herein- 
above prescribed. In case of the violation of this section 
by a citizen traveling as a passenger, such passenger may 
be fined not more than $10,000 or imprisoned for not more 
than two years, or both. 

(c) The President may from time to time modify or 
extend any proclamation issued under the authority of 
this section, and when the conditions which shall have 
caused him to issue any such proclamation shall have ceased 
to exist he shall revoke such proclamation and the provi- 
sions of this section shall thereupon cease to apply, except 
as to offenses committed prior to such revocation. 

AMERICAN RED CROSS 

Sec. 4. The provisions of Section 2 (a) shall not pro- 
hibit the transportation by vessels under charter or other 
direction and control of the American Eed Cross, proceed- 
ing under safe conduct granted by states named in any 
proclamation issued under the authority of Section 1 (a), 
of officers and American Eed Cross personnel, medical per- 
sonnel, and medical supplies, food, and clothing, for the relief 
of human suffering. 

TRAVEL. ON VESSELS OF BELLIGERENT STATES 

Sec. 5. (a) Whenever the President shall have issued a 
proclamation under the authority of Section 1 (a) it shall 
thereafter be unlawful for any citizen of the United States 
to travel on any vessel of any state named in such proclama- 
tion, except in accordance with such rules and regulations 
as may be prescribed. 

(b) Whenever any proclamation issued under the author- 
ity of Section 1 (a) shall have been revoked with respect to 
any state the provisions of this section shall thereupon cease 



APPENDIXES 115 

to apply with respect to such state, except as to offenses 
committed prior to such revocation. 

ARMING OF AMERICAN MERCHANT VESSELS PROHIBITED 

Sec. 6. Whenever the President shall have issued a procla- 
mation under the authority of Section 1 (a) , it shall thereafter 
be unlawful until such proclamation is revoked, for any 
American vessel, engaged in commerce with any foreign 
state to be armed, except with small arms and ammunition 
therefor, which the President may deem necessary and 
shall publicly designate for the preservation of discipline 
aboard any such vessel. 

FINANCIAL TRANSACTIONS 

Sec. 7. (a) Whenever the President shall have issued a 
proclamation under the authority of Section 1 (a), it shall 
thereafter be unlawful for any person within the United 
States to purchase, sell, or exchange bonds, securities, or 
other obligations of the government of any State named in 
such proclamation, or of any political subdivision of any 
such State, or of any person acting for or on behalf of the 
government of any such State or political subdivision thereof, 
issued after the date of such proclamation, or to make any 
loan or extend any credit (other than necessary credits ac- 
cruing in connection with the transmission of telegraph, 
cable, wireless and telephone services) to any such govern- 
ment, political subdivision, or person. The provisions of 
this subsection shall also apply to the sale by any person 
within the United States to any person in a State named 
in any such proclamation of any articles or materials listed 
in a proclamation issued under the authority of Section 12 

a). 

(b) The provisions of this section shall not apply to a re- 
newal or adjustment of such indebtedness as may exist on 
the date of such proclamation. 

(c) Whoever shall knowingly violate any of the provi- 
sions of this section or of any regulations issued thereunder 
shall, upon conviction thereof, be fined not more than 
$50,000 or imprisoned for not more than five years, or 



116 APPENDIXES 

both. Should the violation be by a corporation, organiza- 
tion, or association, each officer or director thereof partici- 
pating in the violation shall be liable to the penalty herein 
prescribed. 

(d) Whenever any proclamation issued under the author- 
ity of Section 1 (a) shall have been revoked with respect to 
any State the provisions of this section shall thereupon cease 
to apply with respect to such State, except as to offenses 
committed prior to such revocation. 

SOLICITATION AND COLLECTION OF FUNDS AND CONTRIBUTIONS 

Sec. 8 (a) Whenever the President shall have issued a 
proclamation under the authority of Section 1 (a), it shall 
thereafter be unlawful for any person within the United 
States to solicit or receive any contribution for or on behalf 
of the government of any State named in such proclamation 
or for or on behalf of any agent or instrumentality of any 
such State. 

(b) Nothing in this section shall be construed to pro- 
hibit the solicitation or collection of funds and contribu- 
tions to be used for medical aid and assistance, or for food 
and clothing to relieve human suffering, when such solicita- 
tion or collection of funds and contributions is made on be- 
half of and for use by any person or organization which is 
not acting for or on behalf of any such government, but all 
such solicitations and collections of funds and contributions 
shall be in accordance with and subject to such rules and 
regulations as may be prescribed. 

(c) Whenever any proclamation issued under the author 
ity of Section 1 (a) shall have been revoked with respect 
to any State the provisions of this section shall thereupon 
cease to apply with respect to such State, except as to of- 
fenses committed prior to such revocation. 

AMERICAN REPUBLICS 

Sec. 9. This joint resolution except Section 12 shall not 
apply to any American republic engaged in war against a 
non-American State or States, provided the American re- 
public is not cooperating with a non-American State or 
States in such war. 



APPENDIXES 117 

RESTRICTIONS ON USE OF AMERICAN PORTS 

Sec. 10. (a) Whenever, during any war in which the 
United States is neutral, the President, or any person there- 
unto authorized by him, shall have cause to believe that any 
vessel, domestic or foreign, whether requiring clearance or 
not, is about to carry out of a port or from the jurisdiction of 
the United States, fuel, men, arms, ammunition, implements 
of war, supplies, dispatches, or information to any warship, 
tender, or supply ship of a state named in a proclamation 
issued under the authority of section 1 (a), but the evidence 
is not deemed sufficient to justify forbidding the departure 
of the vessel as provided for by section 1, title V, chapter 
30, of the Act approved June 15, 1917 (40 Stat. 217, 221 ; 
U. S. C, 1934 edition, title 18, sec. 31), and if, in the Presi- 
dent's judgment, such action will serve to maintain peace 
between the United States and foreign states, or to protect 
the commercial interests of the United States and its citizens, 
or to promote the security or neutrality of the United States, 
he shall have the power, and it shall be his duty, to require 
the owner, master, or person in command thereof, before 
departing from a port or from the jurisdiction of the United 
States, to give a bond to the United States, with sufficient 
sureties, in such amount as he shall deem proper, conditioned 
that the vessel will not deliver the men, or any fuel, supplies, 
dispatches, information, or any part of the cargo, to any 
warship, tender, or supply ship of a state named in a procla- 
mation issued under the authority of section 1 (a). 

(b) If the President, or any person thereunto authorized 
by him, shall find that a vessel, domestic or foreign, in a port 
of the United States, has previously departed from a port 
or from the jurisdiction of the United States during such 
war and delivered men, fuel, supplies, dispatches, informa- 
tion, or any part of its cargo to a warship, tender, or supply 
ship of a state named in a proclamation issued under the 
authority of section 1 (a), he may prohibit the departure 
of such vessel during the duration of the war. 

(c) Whenever the President shall have isued a proclama- 
tion under section 1 (a) he may, while such proclamation is 
in effect, require the owner, master, or person in command of 
any vessel, foreign or domestic, before departing from the 



118 APPENDIXES 

United States, to give a bond to the United States, with suffi- 
cient sureties, in such amount as he shall deem proper, condi- 
tioned that no alien seaman who arrived on such vessel shall 
remain in the United States for a longer period than that per- 
mitted under the regulations, as amended from time to time, 
issued pursuant to section 33 of the Immigration Act of Feb- 
ruary 5, 1917 (U. S. C, title 8, sec. 168). Notwithstanding 
the provisions of said section 33, the President may issue such 
regulations with respect to the landing of such seamen as he 
deems necessary to insure their departure either on such vessel 
or another vessel at the expense of such owner, master, or per- 
son in command. 

SUBMARINES AND ARMED MERCHANT VESSELS 

Section 11. Whenever, during any war in which the 
United States is neutral, the President shall find that special 
restrictions placed on the use of the ports and territorial 
waters of the United States by the submarines or armed 
merchant vessels of a foreign State will serve to maintain 
peace between the United States and foreign States, or to 
protect the commercial interests of the United States and its 
citizens, or to promote the security of the United States, and 
shall make proclamation thereof, it shall thereafter be un- 
lawful for any such submarine or armed merchant vessel to 
enter a port or the territorial waters of the United States 
or to depart therefrom, except under such conditions and 
subject to such limitations as the President may prescribe. 
Whenever, in his judgment, the conditions which have caused 
him to issue his proclamation have ceased to exist, he shall 
revoke his proclamation and the provisions of this section 
shall thereupon cease to apply, except as to offenses com- 
mitted prior to such revocation. 

NATIONAL MUNITIONS CONTROL BOARD 

Sec. 12 (a) There is hereby established a Xational 
Munitions Control Board (hereinafter referred to as the 
"board''). The board shall consist of the Secretary of State, 
who shall be chairman and executive officer of the board; 
the Secretary of the Treasury, the Secretary of War, the 
Secretary of the Navy and the Secretary of Commerce. 



APPENDIXES 119 

Except as otherwise provided in this section, or by other 
law, the administration of this section is vested in the Sec- 
retary of State. The Secretary of State shall promulgate 
such rules and regulations with regard to the enforcement 
of this section as he may deem necessary to carry out its 
provisions. The board shall be convened by the chairman 
and shall hold at least one meeting a year. 

(b) Every person who engages in the business of manu- 
facturing, exporting or importing any arms, ammunition 
or implements of war listed in a proclamation issued under 
authority of subsection (1) of this section, whether as an 
exporter, importer, manufacturer or dealer, shall register 
with the Secretary of State his name, or business name, 
principal place of business and places of business in the 
United States, and a list of the arms, ammunition and im- 
plements of war which he manufactures, imports or exports. 

(c) Every person required to register under this section 
shall notify the Secretary of State of any change in the 
arms, ammunition, or implements of war w T hich he exports, 
imports, or manufactures; and upon such notification the 
Secretary of State shall issue to such person an amended 
certificate of registration, free of charge, which shall remain 
valid until the date of expiration of the original certificate. 
Every person required to register under the provisions of 
this section shall pay a registration fee of $100. Upon 
receipt of the required registration fee the Secretary of 
State shall issue a registration certificate valid for five years, 
which shall be renewable for further periods of five years 
upon the payment for each renewal of a fee of $100. 

(d) It shall be unlawful for any person to export, or at- 
tempt to export, from the United States to any other State, 
any arms, ammunition, or implements of war listed in a proc- 
lamation issued under tlie authority of subsection (i) of this 
section, or to import, or attempt to import, to the United 
States from any other State, any of the arms, ammunition, or 
implements of war listed in any such proclamation, without 
first having submitted to the Secretary of State the name of 
the purchaser and the terms of sale and having obtained a 
license therefor. 

(e) All persons required to register under this section shall 
maintain, subject to the inspection of the Secretary of State, 



120 APPENDIXES 

or any person or persons designated by him, such permanent 
records of manufacture for export, importation, and exporta- 
tion of arms, ammunition, and implements of war as the Sec- 
retary of State shall prescribe. 

(f ) Licenses shall be issued by the Secretary of State to 
persons who have registered as herein provided for, except in 
cases of export or import licenses where the export of arms, 
ammunition, or implements of war would be in violation of 
this joint resolution or any other law of the United States, or 
of a treaty to which the United States is a party, in which 
cases such licenses shall not be issued. 

(g) No purchase of arms, ammunition, or implements of 
war shall be made on behalf of the United States by any offi- 
cer, executive department, or independent establishment of 
the government from any person who shall have failed to reg- 
ister under the provisions of this joint resolution. 

(h) The board shall make a report to Congress on January 
1 and July 1 of each year, copies of which shall be distributed 
as are other reports transmitted to Congress. Such report 
shall contain such information and data collected by the board 
as may be considered of value in the determination of ques- 
tions connected with the control of trade in arms, ammuni- 
tion, and implements of war, including the name of the pur- 
chaser and the terms of sale made under such license. The 
board shall include in such reports a list of all persons re- 
quired to register under the provisions of this joint resolution, 
and full information concerning the licenses issued hereunder, 
including the name of the purchaser and the terms of sale 
made under such license. 

(i) The President is hereby authorized to proclaim upon 
recommendation of the board from time to time a list of arti- 
cles which shall be considered arms, ammunition, and imple- 
ments of war for the purposes of this section. 

REGULATIONS 

Sec. 13. The President may, from time to time, promulgate 
such rules and regulations, not inconsistent with law, as may 
be necesary and proper to carry out any of the provisions 
of this joint resolution; and he may exercise any power or 



APPENDIXES 121 

authority conferred on him by this joint resolution through 
such officer or officers, or agency or agencies, as he shall direct. 

UNLAWFUL USE OF THE AMERICAN FLAG 

Sec. 14 (a). It will be unlawful for any vessel belonging 
to or operating under the jurisdiction of any foregin State 
to use the flag of the United States thereon, to make use of 
any distinctive signs or markings, indicating that the same 
is an American vessel. 

(b) Any vessel violating the provisions of subsection (a) 
of this section shall be denied for a period of three months 
the right to enter the ports or territorial waters of the 
United States except in case of force majeure. 

GENERAL PENALTY PROVISION 

Sec. 15. In every case of the violation of any of the pro- 
visions of this joint resolution or of any rule or regulation 
issued pursuant thereto where a specific penalty is not herein 
provided, such violator or violators, upon conviction, shall 
be fined not more than $10,000, or imprisoned not more than 
two years, or both. 

DEFINITIONS 

Sec. 16. For the purpose of this joint resolution — (a) the 
term "United States" when used in a geographical sense, 
includes the several States and territories, the insular pos- 
sessions of the United States (including the Philippine Is- 
lands), the Canal Zone, and the District of Columbia. 

(b) The term "person" includes a partnership, company, 
association, or corporation, as well, as a natural person. 

(c) The term "vessel" means every description of water 
craft and aircraft capable of being used as a means of trans- 
portation on, under, or over water. 

(d) The term "American vessel" means any vessel docu- 
mented, and any aircraft registered or licensed, under the 
laws of the United States. 

(e) The term "State" shall include nation, government, 
and country. 

(f ) The term "citizen" shall include any individual owing 
allegiance to the United States, a partnership, company, or 

247670—40 9 



122 APPENDIXES 

association composed in whole or in part of citizens of the 
United States, and any corporation organized and existing 
under the laws of the United States as denned in subsection 
(a) of this section. 

SEPARABILITY OF PROVISIONS 

Sec. 17. If any of the provisions of this joint resolution, 
or the application thereof to any person or circumstance, 
is held invalid, the remainder of the joint resolution, and the 
application of such provision to other persons or circum- 
stances, shall not be affected thereby. 

APPROPRIATIONS 

Sec. 18. There is hereby authorized to be appropriated 
from time to time, out of any money in the Treasury not 
otherwise appropriated, such amounts as may be necessary to 
carry out the provisions and accomplish the purposes of this 
joint resolution. 

REPEALS 

Sec. 19. The joint resolution of Aug. 31, 1935, as amended, 
and the joint resolution of Jan. 8, 1937, are hereby repealed, 
provided that such repeal shall not affect the validity of 
certificates of registration or licenses issued pursuant to 
Section 2 of the joint resolution of Aug. 31, 1935, or Sec- 
tion 5 of the joint resolution of Aug. 31, 1935, as amended, 
or the validity of proclamation No. 2237 of May 1, 1937 
(50 Stat. 1834), denning the term "arms, ammunition and 
implements of war," which, until it is revoked, shall have 
full force and effect as if issued pursuant to this joint reso- 
lution : Provided further, That offenses committed and penal- 
ties, forfeitures or liabilities incurred under either of such 
joint resolutions prior to the date of enactment of this joint 
resolution may be prosecuted and punished, and suits and 
proceedings for violations of either of such joint resolu- 
tions or of any rule or regulation issued pursuant thereto 
may be commenced and prosecuted, in the same manner and 
with the same effect as if such joint resolutions had not 
been repealed. 



APPENDIXES 123 

SHORT TITLE 

Sec. 20. This joint resolution may be cited as the a Neutral- 
ity Act of 1939." 

III. Proclamation of neutrality {general) by the 
President, September 5, 1939. 

(4 Federal Kegister, p. 3809.) 

Whereas a state of war unhappily exists between Germany 
and France ; Poland ; and the United Kingdom, India, Aus- 
tralia and New Zealand ; 

And whereas the United States is on terms of friendship 
and amity with the contending powers; and with the per- 
sons inhabiting their several dominions ; 

And whereas there are nationals of the United States 
residing within the territories or dominions of each of the 
said belligerents, and carrying on commerce, trade, or other 
business or pursuits therein; 

And whereas there are nationals of each of the said bel- 
ligerents residing within the territory or jurisdiction of 
the United States, and carrying on commerce, trade, or 
other business or pursuits therein ; 

And whereas the laws and treaties of the United States, 
without interfering with the free expression of opinion 
and sympathy, nevertheless impose upon all persons who 
may be within their territory and jurisdiction the duty of 
an impartial neutrality during the existence of the contest; 

And whereas it is the duty of a neutral government not 
to permit or suffer the making of its territory or territorial 
waters subservient to the purposes of war ; 

Now, therefore, I, Franklin D. Koosevelt, President 
of the United States of America, in order to preserve the 
neutrality of the United States and of its citizens and of 
persons within its territory and jurisdiction, and to en- 
force its laws and treaties, and in order that all persons, 
being warned of the general tenor of the laws and trea- 
ties of the United States in this behalf, and of the law 
of nations, may thus be prevented from any violation of the 
same, do hereby declare and proclaim that by certain pro- 
visions of the act approved on the 4th day of March, A. D. 



124 APPENDIXES 

1909, commonly known as the "Penal Code of the United 
States" and of the act approved on the 15th day of June, 
A. D. 1917, the following acts are forbidden to be done, 
under severe penalties, within the territory and jurisdiction 
of the United States, to wit : 

1. Accepting and exercising a commission to serve one of 
the said belligerents by land or by sea against an opposing 
belligerent. 

2. Enlisting or entering into the service of a belligerent as 
a soldier, or as a marine, or seaman on board of any ship of 
war, letter of marque, or privateer. 

3. Hiring or retaining another person to enlist or enter 
himself in the service of a belligerent as a soldier, or as a ma- 
rine, or seaman on board of any ship of war, letter of marque, 
or privateer. 

4. Hiring another person to go beyond the limits or juris- 
diction of the United States with intent to be enlisted as 
aforesaid. 

5. Hiring another person to go beyond the limits or juris- 
diction of the United States with intent to be entered into 
service as aforesaid. 

6. Retaining another person to go beyond the limits or ju- 
risdiction of the United States to be enlisted as aforesaid. 

7. Retaining another person to go beyond the limits or ju- 
risdiction of the United States with intent to be entered into 
service as aforesaid. (But the said act of the 4th day of 
March, A. D. 1909, as amended by the act of the 15th day of 
June, A. D. 1917, is not to be construed to extend to a citizen 
or subject of a belligerent who, being transiently within the 
jurisdiction of the United States, shall, on board of any ship 
of war, which, at the time of its arrival within the jurisdiction 
of the United States, was fitted and equipped as such ship of 
war, enlist or enter himself or hire or retain another subject 
or citizen of the same belligerent, who is transiently within 
the jurisdiction of the United States, to enlist or enter him- 
self to serve such belligerent on board such ship of war, if the 
United States shall then be at peace with such belligerent.) 

8. Fitting out and arming, or attempting to fit out and arm, 
or procuring to be fitted out and armed, or knowingly being 
concerned in the furnishing, fitting out, or arming of any ship 



APPENDIXES 125 

or vessel with intent that such ship or vessel shall be employed 
in the service of one of the said belligerents to cruise, or com- 
mit hostilities against the subjects, citizens, or property of an 
opposing belligerent. 

9. Issuing or delivering a commission within the territory 
or jurisdiction of the United States for any ship or vessel 
to the intent that she may be employed as aforesaid. 

10. Increasing or augmenting, or procuring to be increased 
or augmented, or knowingly being concerned in increasing 
or augmenting, the force of any ship of war, cruiser, or other 
armed vessel, which at the time of her arrival within the 
jurisdiction of the United States was a ship of war, cruiser, 
or armed vessel in the service of a belligerent, or belonging 
to a national thereof, by adding to the number of guns of 
such vessel, or by changing those on board of her for guns 
of a larger caliber, or by the addition thereto of any equip- 
ment solely applicable to war. 

11. Knowingly beginning or setting on foot or providing 
or preparing a means for or furnishing the money for, or 
taking part in, any military or naval expedition or enter- 
prise to be carried on from the territory or jurisdiction of 
the United States against the territory or dominion of a 
belligerent. 

12. Despatching from the United States, or any place sub- 
ject to the jurisdiction thereof, any vessel, domestic or for- 
eign, which is about to carry to a warship, tender, or sup- 
ply ship of a belligerent any fuel, arms, ammunition, men, 
supplies, despatches, or information shipped or received on 
board within the jurisdiction of the United States. 

13. Despatching from the United States, or any place sub- 
ject to the jurisdiction thereof, any armed vessel owned 
wholly or in part by American citizens, or any vessel, 
domestic or foreign (other than one which has entered the 
jurisdiction, of the United States as a public vessel), which 
is manifestly built for warlike purposes or has been con- 
verted or adapted from a private vessel to one suitable for 
warlike use, and which is to be employed to cruise against 
or commit or attempt to commit hostilities upon the sub- 
jects, citizens, or property of a belligerent nation, or which 
will be sold or delivered to a belligerent nation, or to an 



126 APPENDIXES 

agent, officer, or citizen thereof, within the jurisdiction of 
the United States, or, having left that jurisdiction, upon the 
high seas. 

14. Despatching from the United States, or any place sub- 
ject to the jurisdiction thereof, any vessel built, armed, or 
equipped as a ship of war, or converted from a private vessel 
into a ship of war (other than one which has entered the 
jurisdiction of the United States as a public vessel), with 
any intent or under any agreement or contract, written or 
oral, that such vessel shall be delivered to a belligerent na- 
tion, or to any agent, officer, or citizen of such nation, or 
where there is reasonable cause to believe that the said 
vessel shall or will be employed in the service of such bel- 
ligerent nation after its departure from the jurisdiction of 
the United States. 

15. Taking, or attempting or conspiring to take, or au- 
thorizing the taking of any vessel out of port or from the 
jurisdiction of the United States in violation of the said act 
of the 15th day of June, A. D. 1917, as set forth in the 
preceding paragraphs numbered 11 to 14 inclusive. 

16. Leaving or attempting to leave the jurisdiction of the 
United States by a person belonging to the armed land or 
naval forces of a belligerent who shall have been interned 
within the jurisdiction of the United States in accordance 
with the law of nations, or leaving or attempting to leave 
the limits of internment in which freedom of movement has 
been allowed, without permission from the proper official of 
the United States in charge, or wilfully overstaying a leave 
of absence granted by such official. 

17. Aiding or enticing any interned person to escape or 
attempt to escape from the jurisdiction of the United States, 
or from the limits of internment prescribed. 

AND I do hereby further declare and proclaim that any 
frequenting and use of the waters within the territorial 
jurisdiction of the United States by the vessels of a bel- 
ligerent, whether public ships or privateers for the purpose 
of preparing for hostile operations, or as posts of observa- 
tion upon the ships of war or privateers or merchant vessels 
of an opposing belligerent must be regarded as unfriendly 
and offensive, and in violation of that neutrality which it is 



APPENDIXES 127 

the determination of this government to observe ; and to the 
end that the hazard and inconvenience of such apprehended 
practices may be avoided, I further proclaim and declare 
that from and after the fifth day of September instant, 
and so long as this proclamation shall be in effect, no ship 
of war or privateer of any belligerent shall be permitted 
to make use of any port, harbor, roadstead, or waters sub- 
ject to the jurisdiction of the United States as a station or 
place of resort for any warlike purpose or for the purpose 
of obtaining warlike equipment; no privateer of a bellig- 
erent shall be permitted to depart from any port, harbor, 
roadstead, or waters subject to the jurisdiction of the United 
States; and no ship of war of a belligerent shall be per- 
mitted to sail out of or leave any port, harbor, roadstead, 
or waters subject to the jurisdiction of the United States 
from which a vessel of an opposing belligerent (whether the 
same shall be a ship of war or a merchant ship) shall have 
previously departed, until after the expiration of at least 
twenty-four hours from the departure of such last-mentioned 
vessel beyond the jurisdiction of the United States. 

If any ship of war of a belligerent shall, after the time 
this notification takes effect, be found in, or shall enter any 
port, harbor, roadstead, or waters subject to the jurisdiction 
of the United States, such vessel shall not be permitted 
to remain in such port, harbor, roadstead, or waters more 
than twenty-four hours, except in case of stress of weather, 
or for delay in receiving supplies or repairs, or when de- 
tained by the United States; in any of which cases the 
authorities of the port, or of the nearest port (as the case 
may be) , shall require her to put to sea as soon as the cause 
of the delay is at an end, unless within the preceding 
twenty-four hours a vessel, whether ship of war or mer- 
chant ship of an opposing belligerent, shall have departed 
therefrom, in which case the time limited for the departure 
of such ship of war shall be extended so far as may be nec- 
essary to secure an interval of not less than twenty-four 
hours between such departure and that of any ship of war or 
merchant ship of an opposing belligerent which may have 
previously quit the same port, harbor, roadstead, or waters. 

Vessels used exclusively for scientific, religious, or phil- 
anthropic purposes are exempted from the foregoing pro- 



128 APPENDIXES 

visions as to the length of time ships of war may remain 
in the ports, harbors, roadsteads, or waters subject to the 
jurisdiction of the United States. 

The maximum number of ships of war belonging to a 
belligerent and its allies which may be in one of the ports, 
harbors, or roadsteads subject to the jurisdiction of the 
United States simultaneously shall be three. 

When ships of war of opposing belligerents are present 
simultaneously in the same port, harbor, roadstead, or wa- 
ters, subject to the jurisdiction of the United States, the 
one entering first shall depart first, unless she is in such 
condition as to warrant extending her stay. In any case 
the ship which arrived later has the right to notify the 
other through the competent local authority that within 
twenty-four hours she will leave such port, harbor, road- 
stead, or waters, the one first entering, however, having the 
right to depart within that time. If the one first entering 
leaves, the notifying ship must observe the prescribed inter- 
val of twenty-four hours. If a delay beyond twenty- four 
hours from the time of arrival is granted, the termination of 
the cause of delay will be considered the time of arrival in 
deciding the right of priority in departing. 

Vessels of a belligerent shall not be permitted to depart 
successively from any port, harbor, roadstead, or waaters 
subject to the jurisdiction of the United States at such inter- 
vals as will delay the departure of a ship of war of an 
opposing belligerent from such ports, harbors, roadsteads, or 
waters for more than twenty-four hours beyond her de- 
sired time of sailing. If, however, the departure of several 
ships of war and merchant ships of opposing belligerents 
from the same port, harbor, roadstead, or waters is involved, 
the order of their departure therefrom shall be so arranged 
as to afford the opportunity of leaving alternately to the 
vessels of the opposing belligerents, and to cause the least 
detention consistent with the objects of this proclamation. 

All belligerent vessels shall refrain from use of their 
radio and signal apparatus while in the harbors, ports, road- 
steads, or waters subject to the jurisdiction of the United 
States, except for calls of distress and communications con- 
nected with safe navigation or arrangements for the arrival 



APPENDIXES 129 

of the vessel within, or departure from, such harbors, ports, 
roadsteads, or waters, or passage through such waters ; pro- 
vided that such communications will not be of direct mate- 
rial aid to the belligerent in the conduct of military opera- 
tions against an opposing belligerent. The radio of bellig- 
erent merchant vessels may be sealed by the authorities of 
the United States, and such seals shall not be broken within 
the jurisdiction of the United States except by proper au- 
thority of the United States. 

No ship of war of a belligerent shall be permitted, while 
in any port, harbor, roadstead, or waters subject to the juris- 
diction of the United States, to take in any supplies except 
provisions and such other things as may be requisite for 
the subsistence of her crew in amounts necessary to bring 
such supplies to her peace standard, and except such fuel, 
lubricants, and feed water only as may be sufficient, with 
that already on board, to carry such vessel, if without any 
sail power, to the nearest port of her own country; or in 
case a vessel is rigged to go under sail, and may also be 
propelled by machinery, then half the quantity of fuel, 
lubricants, and feed water which she would be entitled 
to have on board, if dependent upon propelling machinery 
alone, and no fuel, lubricants, or feed water shall be again 
supplied to any such ship of war in the same or any other 
port, harbor, roadstead, or waters subject to the jurisdiction 
of the United States until after the expiration of three 
months from the time when such fuel, lubricants and feed wa- 
ter may have been last supplied to her within waters subject 
to the jurisdiction of the United States. The amounts of 
fuel, lubricants, and feed water allowable under the above 
provisions shall be based on the economical speed of the 
vessel, plus an allowance of thirty per centum for eventual- 
ities. 

No ship of war of a belligerent shall be permitted, while 
in any port, harbor, roadstead, or waters subject to the jur- 
isdiction of the United States, to make repairs beyond those 
that are essential to render the vessel seaworthy and which 
in no degree constitute an increase in her military strength. 
Eepairs shall be made without delay. Damages which are 
found to have been produced by the enemy's fire shall in no 
case be repaired. 



130 APPENDIXES 

No ship of war of a belligerent shall effect repairs or re- 
ceive fuel, lubricants, feed water, or provisions within the 
jurisdiction of the United States without written authoriza- 
tion of the proper authorities of the United States. Before 
such authorization will be issued, the commander of the 
vessel shall furnish to such authorities a written declaration, 
duly signed by such commander, stating the date, port, 
and amounts of supplies last received in the jurisdiction of 
the United States, the amounts of fuel, lubricants, feed 
water, and provisions on board, the port to which the vessel 
is proceeding, the economical speed of the vessel, the rate 
of consumption of fuel, lubricants, and feed water at such 
speed, and the amount of each class of supplies desired. 
If repairs are desired, a similar declaration shall be fur- 
nished stating the cause of the damage and the nature of 
the repairs. In either case, a certificate shall be included to 
the effect that the desired services are in accord with the 
rules of the United States in that behalf. 

No agency of the United States Government shall, di- 
rectly or indirectly, provide supplies nor effect repairs to a 
belligerent ship of war. 

No vessel of a belligerent shall exercise the right of 
search within the waters under the jurisdiction of the United 
States, nor shall prizes be taken by belligerent vessels within 
such waters. Subject to any applicable treaty provisions 
in force, prizes captured by belligerent vessels shall not 
enter any port, harbor, roadstead, or waters under the juris- 
diction of the United States except in case of unseaworthi- 
ness, stress of weather, or want of fuel or provisions ; when 
the cause has disappeared, the prize must leave immediately, 
and if a prize captured by a belligerent vessel enters any 
port, harbor, roadstead, or waters subject to the jurisdiction 
of the United States for any other reason than on account 
of unseaworthiness, stress of weather, or want of fuel or 
provisions, or fails to leave as soon as the circumstances 
which justified the entrance are at an end, the prize with its 
officers and crew will be released and the prize crew will 
be interned. A belligerent Prize Court cannot be set up on 
territory subject to the jurisdiction of the United States or 
on a vessel in the ports, harbors, roadsteads, or waters sub- 
ject to the jurisdiction of the United States. 



APPENDIXES 131 

The provisions of this proclamation pertaining to ships 
of war shall apply equally to any vessel operating under 
public control for hostile or military purposes. 

AND I do further declare and proclaim that the statutes 
and the treaties of the United States and the law of nations 
alike require that no person, within the territory and juris- 
diction of the United States, shall take part, directly or indi- 
rectly, in the said war, but shall remain at peace with all of 
the said belligerents, and shall maintain a strict and impar- 
tial neutrality. 

AND I do further declare and proclaim that the provisions 
of this proclamation shall apply to the Canal Zone except in 
so far as such provisions may be specifically modified by a 
proclamation or proclamations issued for the Canal Zone. 

AND I do hereby enjoin all nationals of the United States, 
and all persons residing or being within the territory or juris- 
diction of the United States, to observe the laws thereof, and 
to commit no act contrary to the provisions of the said statutes 
or treaties or in violation of the law of nations in that behalf. 

AND I do hereby give notice that all nationals of the United 
States and others who may claim the protection of this gov- 
ernment, who may misconduct themselves in the premises, will 
do so at their peril, and that they can in no wise obtain any 
protection from the government of the United States against 
the consequences of their misconduct. 

This proclamation shall continue in full force and effect 
unless and until modified, revoked or otherwise terminated, 
pursuant to law. 

IN WITNESS WHEREOF, I have hereunto set my hand 
and caused the seal of the United States to be affixed. 

DONE at the city of Washington this fifth day of Septem- 
ber in the year of our Lord nineteen hundred and 

[seal] thirty-nine, and of the Independence of the United 
States of America the one hundred and sixty- 
fourth. 

Franklin D. Roosevelt 

By the President: 
Cordell Hull 

Secretary of State. 



132 APPENDIXES 

IV. Regulations Governing the Enforcement of 
Neutrality. 

(Dept. of State, Executive Order, No. 380, September 5, 
1939.) 

Whereas, under the treaties of the United States and 
the law of nations it is the duty of the United States, 
in any war in which the United States is a neutral, not 
to permit the commission of unneutral acts within the 
jurisdiction of the United States; 

And whereas, a proclamation was issued by me on 
the fifth day of September declaring the neutrality of the 
United States f America in the war now existing between 
Germany and France; Poland; and the United Kingdom, 
India, Australia and New Zealand : 

Now, therefore, in order to make more effective the en- 
forcement of the provisions of said treaties, law of nations, 
and proclamation, I hereby prescribe that, during said 
war, the departments and independent offices and estab- 
lishments of the United States Government shall have the 
following duties to perform in enforcing the neutrality of 
the United States, which duties shall be in addition to the 
duties now prescribed, or hereafter prescribed, by law, or 
by other executive order or regulation not in conflict here- 
with, for the departments and independent offices and estab- 
lishments of the United States Government: 

1. War Department: Enforcement of the neutrality of 
the United States as prescribed in the above-mentioned 
proclamation so far as concerns the military land forces of 
neutral and belligerent powers ; except as provided in para- 
graphs numbered 2b and 4 hereof. 

2. Navy Department: Enforcement of the neutrality of 
the United States as prescribed in the above-mentioned 
proclamation, (a) so far as concerns vessels of the naval 
establishments of neutral and belligerent powers and other 
vessels operating for hostile or military purposes, except 
as provided in paragraph numbered 4 hereof; (b) enforce- 
ment of the neutrality of the United States as prescribed 
in said proclamation in outlying possessions subject to the 
exclusive jurisdiction of the Navy Department; (c) in the 



APPENDIXES 133 

Philippine Islands, enforcement of the neutrality of the 
United States as respects all vessels as prescribed in said 
proclamation, with the special cooperation of the Depart- 
ment of State and the Department of the Interior. 

3. Treasury Department and Com/merce Department: 
(Under such further division of responsibility as the Sec- 
retary of the Treasury and the Secretary of Commerce may 
mutually agree upon) Enforcement of the neutrality of 
the United States as prescribed in the above-mentioned 
proclamation so far as concerns all vessels except those 
referred to in paragraph numbered 2 hereof, with the spe- 
cial cooperation of the Department of the Interior in the 
territories and outlying possessions where the Treasury 
Department and the Commerce Department are required 
by law to carry out their respective functions, and except in 
the Philippine Islands, the Canal Zone, and the outlying 
possessions subject to the exclusive jurisdiction of the Navy 
Department. 

4. Governor of the Panama Canal: Enforcement within 
the Canal Zone of the neutrality of the United States as 
prescribed in the above-mentioned proclamation, and ad- 
ministrative action in connection therewith. The military 
and naval forces stationed in the Canal Zone shall give him 
such assistance for this purpose as he may request. If an 
officer of the Army shall be designated to assume authority 
and jurisdiction over the operation of the Panama Canal 
as provided in Section 8 of Title 2 of the Canal Zone Code, 
such officer of the Army shall thereafter have the duties 
above assigned to the Governor of the Panama Canal. 

5. Department of Justice: Enforcement of the neutrality 
of the United States as prescribed in the above-mentioned 
proclamation, not especially delegated to other departments, 
independent offices and establishments of the United States 
Government, and prosecution of violations of the neutrality 
of the United States. 

6. All Departments and Independent Offices and Estab- 
lishments of the United States: Enforcement of neutrality 
in connection with their own activities, furnishing infor- 
mation to, and assisting all other departments and inde- 
pendent offices and establishments of the United States Gov- 



134 APPENDIXES 

eminent in connection with the duties herein assigned; and 
issuing rules and regulations necessary for carrying out the 
duties herein assigned. 

V. Proclamation (Special) : Export of Arms, 
Ammunition, and Implements of War Sep- 
tember 5, 1939. 

(4 Federal Register, 3819 : Revoked by Proclamation No. 
2374, November 4, 1939.) 

Whereas section 1 of the joint resolution of Congress 
approved May 1, 1937, provides in part as follows : 

"Whenever the President shall find that there exists a 
state of war between, or among, two or more foreign states, 
the President shall proclaim such fact, and it shall there- 
after be unlawful to export, or attempt to export, or cause to 
be exported, arms, ammunition, or implements of war from 
any place in the United States to any belligerent state named 
in such proclamation, or to any neutral state for trans- 
shipment to, or for the use of, any such belligerent state." 

And whereas it is further provided by section 1 of the 
said joint resolution that 

"The President shall, from time to time by proclamation, 
definitely enumerate the arms, ammunition, and implements 
of war, the export of which is prohibited by this section. 
The arms, ammunition, and implements of war so enumer- 
ated shall include those enumerated in the President's proc- 
lamation Numbered 2163, of April 10, 1936, but shall not 
include raw materials or any other articles or materials 
not of the same general character as those enumerated in the 
said proclamation, and in the Convention for the Supervi- 
sion of the Internationl Trade in Arms and Ammunition 
and in Implements of War, signed at Geneva June 17, 1925." 

And whereas it is further provided by section 1 of the 
said joint resolution that 

M Whoever, in violation of any of the provisions of this 
Act, shall export, or attempt to export, or cause to be 
exported, arms, ammunition, or implements of war from 
the United States shall be fined not more than $10,000 or im- 
prisoned not more than five years, or both, and the property, 
vessel, or vehicle containing the same shall be subject to the 



APPENDIXES 135 

provisions of sections 1 to 8, inclusive, title 6, chapter 30, 
of the Act approved June 15, 1917 (40 Stat. 223-225; 
U. S. C, 1934 ed., title 22, sees. 238-245) ." 

And whereas it is further provided by section 1 of the 
said joint resolution that 

"In the case of the forfeiture of any arms, ammunition, 
or implements of war by reason of a violation of this Act, 
no public or private sale shall be required; but such arms, 
ammunition, or implements of war shall be delivered to 
the Secretary of War for such use or disposal thereof as 
shall be approved by the President of the United States." 

And whereas it is further provided by section 11 of the 
said joint resolution that 

"The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law, as may be 
necessary and proper to carry out any of the provisions 
of this Act: and he may exercise any power or authority 
conferred on him by this Act through such officer or offi- 
cers, or agency or agencies, as he shall direct." 

Now. therefore, I, Fraxklin D. Roosevelt, President of 
the United States of America, acting under and by virtue 
of the authority conferred on me by the said joint resolution, 
do hereby proclaim that a state of war unhappily exists 
between Germany and France; Poland; and the United 
Kingdom. India, Australia and New Zealand, and I do 
hereby admonish all citizens of the United States, or any of 
its possessions, and all persons residing or being within the 
territory or jurisdiction of the United States, or its posses- 
sions, to abstain from every violation of the provisions of the 
joint resolution above set forth, hereby made effective and 
applicable to the export of arms, ammunition, or implements 
of war from any place in the United States or any of its 
possessions to France; Germany; Poland; or the United 
Kingdom, India. Australia and New Zealand, or to any 
other state for transshipment to, or for the use of, France; 
Germany; Poland; or the United Kingdom, India, Australia 
and New Zealand. 

And I do hereby declare and proclaim that the articles 
enumerated below shall be considered arms, ammunition, and 
implements of war for the purposes of section 1 of the said 
joint resolution of Congress : 



136 APPENDIXES 

CATEGORY I 

(1) Rifles and carbines using ammunition in excess of 
caliber .22, and barrels for those weapons ; 

(2) Machine guns, automatic or autoloading rifles, and 
machine pistols using ammunition in excess of caliber .22, 
and barrels for those weapons ; 

(3) Guns, howitzers, and mortars of all calibers, their 
mountings and barrels; 

(4) Ammunition in excess of caliber .22 for the arms 
enumerated under (1) and (2) above, and cartridge cases 
or bullets for such ammunition; filled and unfilled projec- 
tiles for the arms enumerated under (3) above; 

(5) Grenades, bombs, torpedoes, mines and depth charges, 
filled or unfilled, and apparatus for their use or discharge; 

(6) Tanks, military armored vehicles, and armored trains. 

CATEGORY II 

Vessels of war of all kinds, including aircraft carriers 
and submarines, and armor plate for such vessels. 

CATEGORY HI 

(1) Aircraft, unassembled, assembled, or dismantled, both 
heavier and lighter than air, which are designed, adapted, 
and intended for aerial combat by the use of machine guns 
or of artillery or for the carrying and dropping of bombs, 
or which are equipped with, or which by reason of design 
or construction are prepared for, any of the appliances re- 
ferred to in paragraph (2) below; 

(2) Aerial gun mounts and frames, bomb racks, torpedo 
carriers, and bomb or torpedo release mechanisms. 

CATEGORY IV 

(1) Revolvers and automatic pistols using ammunition 
in excess of caliber .22; 

(2) Ammunition in excess of caliber .22 for the arms 
enumerated under (1) above, and cartridge cases or bullets 
for such ammunition. 



APPENDIXES 137 

CATEGORY V 

(1) Aircraft, unassembled, assembled or dismantled, both 
heavier and lighter than air, other than those included in 
Category III. 

(2) Propellers or air screws, fuselages, hulls, wings, tail 
units, and under-carriage units; 

(3) Aircraft engines, unassembled, assembled, or dis- 
mantled. 

CATEGORY VI 

(1) Livens projectors and flame throwers; 

(2) a. Mustard gas (dichlorethyl sulphide) ; 

b. Lewisite (chlorvinyldichlorarsine and dichlordi- 

vinylchlorarsine) ; 

c. Methyldichlorarsine ; 

d . D ipheny lchlor arsine ; 

e. Diphenylcyanarsine; 

f. Diphenylaminechlorarsine; 

g. Phenyldichlorarsine ; 
h. Ethyldichlor arsine; 

i . Phenyldibromarsine ; 

j. Ethyldibromarsine; 

k. Phosgene; 

1. Monochlormethylchlorf ormate ; 

m. TrichlormethylclJorformate (diphosgene) ; 

n. Dichlordimethyl Ether; 

o. Dibromdimethyl Ether; 

p. Cyanogen Chloride; 

q. Ethylbromacetate ; 

r. Ethyliodoacetate; 

s . Brombenzylcyanide ; 

t. Bromacetone ; 

u. Brommethylethyl ketone. 

CATEGORY VII 

(1) Propellant powders; 

(2) High explosives as follows: 

a. Nitrocellulose having a nitrogen content of more 

than 12 percent; 

b. Trinitrotoluene; 

247670—40 10 



138 APPENDIXES 

(2) High explosives — Continued. 

c. Trinitroxylene ; 

d. Tetryl (trinitrophenol methyl nitramine or tetra- 

nitro methylaniline) ; 

e. Picric acid; 

f. Ammonium picrate; 

g. Trinitroanisol; 

h. Trinitronaphthalene; 

i. Tetranitronaphthalene; 

j . Hexanitrodiphenylamine ; 

k. Pentaerythritetetranitrate (Penthrite or Pentrite); 

1. Trimethylenetrinitramine (Hexogen or T4); 

m. Potassium nitrate powders (black saltpeter pow- 
der) ; 

n. Sodium nitrate powders (black soda powder) ; 

o. Amatol (mixture of ammonium nitrate and tri- 
nitrotoluene) ; 

p. Ammonal (mixture of ammonium nitrate, tri- 
nitrotoluene, and powdered aluminum, with or 
without other ingredients) ; 

q. Schneiderite (mixture of ammonium nitrate and 
dinitronaphthalene, with or without other in- 
gredients). 

And I do hereby enjoin upon all officers of the United 
States, charged with the execution of the laws thereof, the 
utmost diligence in preventing violations of the said joint 
resolution, and this my proclamation issued thereunder, and 
in bringing to trial and punishment any offenders against 
the same. 

And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me 
by the said joint resolution, as made effective by this my 
proclamation issued thereunder, and the power to promul- 
gate such rules and regulations not inconsistent with law as 
may be necessary and proper to carry out any of its 
provisions. 

In witness whereof, I have hereunto set my hand 
and caused the Seal of the United States of America to be 
affixed. 



APPENDIXES 139 

Done at the city of Washington this fifth day of Septem- 
ber, in the year of our Lord nineteen hundred 
[seal] and thirty-nine, and of the Independence of the 
United States of America the one hundred and 
sixty-fourth. 

FRANKLIN D. ROOSEVELT 
By the President : 
Cordell Hull 

Secretary of State. 

VI. Regulations Concerning Neutrality in the 
Canal Zone. 

(Dept. of State, Executive Order, No. 390, September 5 t 
1939.) 

Whereas a proclamation having been issued by me on 
the fifth day of September instant declaring the neutrality of 
the United States of America in the war now existing between 
Germany and France ; Poland ; the United Kingdom, India, 
Australia and New Zealand ; 

And whereas the provisions of the said proclamation 
apply to the Canal Zone except in so far as such provisions 
may be modified by a proclamation issued for the Canal Zone ; 

Now, therefore, I, Franklin D. Roosevelt, President 
of the United States of America, do declare and proclaim 
that, from and after the fifth day of September instant, the 
said proclamation issued by me on the fifth day of September 
instant, in its application to the Canal Zone, is hereby modi- 
fied as follows : 

1. The limit of twenty-four hours prescribed by the above 
proclamation, with certain exceptions, as the maximum time 
a belligerent ship of war may remain within the jurisdiction 
of the United States shall apply to the total time such ship 
of war may remain in all the waters of the Canal Zone, except 
that the time required to transit the Canal shall be in addi- 
tion to the prescribed twenty-four hours. Such transit shall 
be effected with the least possible delay in accordance with 
the Canal regulations in force, and only with such intermis- 
sion as may result from the necessities of the service. 

2. The maximum number of ships of war belonging to a 
belligerent and its allies which may be simultaneously in 
either terminal port and the terminal waters adjacent to such 



140 APPENDIXES 

port shall be three. The maximum number of such vessels 
in all the waters of the Canal Zone simultaneously, including 
those in transit through the Canal, shall be six. 

3. Belligerent ships of war, not carrying aircraft, depart- 
ing from the jurisdiction of the Canal Zone from one of the 
terminal ports shall not be required to observe the prescribed 
interval of time between such departure and the departure 
from such jurisdiction of a vessel of an opposing belligerent 
from the other terminal port. 

4. The time of original arrival of vessels within the juris- 
diction of the Canal Zone, whether or not they transit the 
Canal, shall be used as the time of arrival in deciding the 
right of priority, between vessels of opposing belligerents, 
in departing from the jurisdiction of the Canal Zone. 

5. If a belligerent ship of war which has left the waters 
of the Canal Zone, whether she has transitted the Canal 
or not, returns within a period of one week after her de- 
parture, she shall lose all right of priority in departure 
from the Canal Zone, or in passage through the Canal, 
over vessels of an opposing belligerent which may enter 
those waters after her return and before the expiration of 
one week subsequent to her previous departure. In any such 
case, the time of departure of a vessel which has so returned 
shall be fixed by the Canal authorities, who may in so 
doing consider the wishes of the commander or master of 
a vessel or vessels of an opposing belligerent then present 
within the waters of the Canal Zone. 

6. If it is wholly impossible, as determined by the Gov- 
ernor of the Panama Canal, for a belligerent ship of war 
to effect repairs through, or to obtain fuel, lubricants, feed 
water, and provisions from, a private contractor within the 
Canal Zone or the Republic of Panama, the agencies of the 
United States administered by the Canal authorities may, in 
order to facilitate the operation of the Canal or its appur- 
tenances, effect such repairs and furnish such supplies in 
accordance w T ith the Canal regulations in force, but when 
repairs and supplies are so obtained they shall be limited 
to such repairs and such amounts of fuel, lubricants, feed 
water, and provisions, with that already on board, as may 
be necessary to enable the vessel to proceed to the nearest, 



APPENDIXES 141 

accessible port, not an enemy port, in the general direction 
of her voyage, at which she can obtain further repairs or 
supplies necessary for the continuation of the voyage. The 
amounts of fuel, lubricants, feed water, and provisions so 
received shall be deducted from the amounts otherwise al- 
lowed in ports, harbors, roadsteads, and waters subject to 
the jurisdiction of the United States, including the Canal 
Zone, during any time within a period of three months there- 
after. No public vessel of a belligerent shall receive fuel 
or lubricants while within the territorial waters of the Canal 
Zone except under written authorization of the Canal Au- 
thorities, specifying the amount of fuel and lubricants 
which may be received. Moreover, the repair facilities and 
docks belonging to the United States and administered by 
the Canal Authorities shall not be used by a public vessel 
of a belligerent, except when necessary in case of actual 
distress, and then only upon the order of the Canal Authori- 
ties, and only to the degree necessary to render the vessel 
seaworthy. Any work authorized shall be done with the 
least possible delay. 

7. In the Canal Zone, prizes shall be in all respects sub- 
ject to the same rules as ships of war of the belligerents. 

And I do further declare and proclaim that, from and 
after the fifth day of September instant, the following 
additional provisions shall be effective in the Canal Zone: 

1. No belligerent shall embark or disembark troops, mu- 
nitions of war, or warlike materials in the Canal Zone, 
except when required by the Canal authorities, or in case 
of accidental hindrance of the transit. In such cases the 
Canal authorities shall be the judges of the necessity, and 
the transit shall be resumed with all dispatch. 

2. No belligerent aircraft shall be navigated into, within, 
or through the air spaces above the territory or waters of 
the Canal Zone. 

3. The enforcement of neutrality of the United States 
within the Canal Zone and administrative action in connec- 
tion therewith shall be the responsibility of the Governor 
of the Panama Canal; and the military and naval forces 
stationed in the Canal Zone shall give him such assistance 
for this purpose as he may request; provided that, if an 



142 APPENDIXES 

officer of the Arm}- is designated to assume authority and 
jurisdiction over the operation of the Panama Canal as 
provided in Section 8 of Title 2 of the Canal Zone Code, 
such officer of the Army shall thereafter have such responsi- 
bility. 

AND I do further declare and proclaim that the provisions 
of this proclamation and the provisions of the proclamation 
of the fifth day of September instant are in addition to the 
"Rules and Regulations for the Operation and Navigation of 
the Panama Canal and Approaches Thereto, including all 
"Waters under its jurisdiction" prescribed by Executive Or- 
der No. 4314, of September 25, 1925, as amended. 

This proclamation shall continue in full force and effect 
unless and until modified, revoked, or otherwise terminated 
pursuant to law. 

In witness whereof, I have hereunto set my hand and 
caused the seal of the United States to be affixed. 

Done at the city of Washington this fifth day of Sep- 
tember, in the year of our Lord nineteen hundred and thirty- 
nine, and of the Independence of the United States of Amer- 
ica the one hundred and sixty-fourth. 

FRANKLIN D. ROOSEVELT 

By the President: 
Cordell Hull 

Secretary of State. 

VII. 'Regulations Governing the Passage of Ves- 
sels Through the Panama Canal. 

(Dept. of State, Executive Order, No. 391, September 5, 
1939.) 

Whereas the treaties of the United States, in any war in 
which the United States is a neutral, impose on the United 
States certain obligations to both neutral and belligerent 
nations ; 

And w t hereas the treaties of the United States, in any 
war in which the United States is a neutral, require that the 
United States exert all the vigilance within their power to 
carry out their obligations as a neutral ; 

And whereas treaties of the United States require that 
the Panama Canal shall be free and open, on terms of entire 



APPENDIXES 143 

equality, to the vessels of commerce and of war of all nations 
observing the rules laid down in Article 3 of the so-called 
Hay-Pauncefote treaty concluded between the United States 
and Great Britain, November 18, 1901 ; 

Now, therefore, by virtue of the authority vested in me 
by section 5 of the Panama Canal Act, approved August 24, 
1912 (ch. 390, sec. 5, 37 Stat, 562), as amended by the act of 
July 5, 1932 (ch. 425, 47 Stat. 578), I hereby prescribe the 
following regulations governing the passage and control 
of vessels through the Panama Canal or any part thereof, 
including the locks and approaches thereto, in any war in 
which the United States is a neutral ; 

1. Whenever considered necessary, in the opinion of the 
Governor of the Panama Canal, to prevent damage or injury 
to vessels or to prevent damage or injury to the Canal or its ap- 
purtenances, or to secure the observance of the rules, regula- 
tions, rights, or obligations of the United States, the Canal au- 
thorities may at any time, as a condition precedent to transit 
of the Canal, inspect any vessel, belligerent or neutral, other 
than a public vessel, including its crew and cargo, and, 
for and during the passage through the Canal, place armed 
guards thereon, and take full possession and control of such 
vessel and remove therefrom the officers and crew thereof 
and all other persons not specially authorized by the 
Canal authorities to go or remain on board thereof during 
such passage. 

2. A public vessel of a belligerent or neutral nation shall 
be permitted to pass through the Canal only after her com- 
manding officer has given written assurance to the authori- 
ties of the Panama Canal that the rules, regulations, and 
treaties of the United States will be faithfully observed. 

The foregoing regulations are in addition to the "Rules 
and Regulations for the Operation and Navigation of the 
Panama Canal and Approaches Thereto, including all Wa- 
ters under its Jurisdiction" prescribed by Executive Order 
No. 4314 of September 25, 1925, as amended, and the pro- 
visions of proclamations and executive orders pertaining to 
the Canal Zone issued in conformity with the laws and 
treaties of the United States. 

FRANKLIN D. ROOSEVELT 



144 APPENDIXES 

VIII. Proclamation of a National Emergency. 

(Dept. of States, Executive Order No. 410, September 
«, 1939.) 

Whereas a proclamation issued by me on September 5, 
1939, proclaimed the neutrality of the United States in the 
war now unhappily existing between certain nations; and 

Whereas this state of war imposes on the United States 
certain duties with respect to the proper observance, safe- 
guarding, and enforcement of such neutrality, and the 
strengthening of the national defense within the limits of 
peace-time authorizations; and 

Whereas measures required at this time call for the exer- 
cise of only a limited number of the powers granted in a 
national emergency : 

Now, therefore, I, Franklin D. Eoosevelt, President of 
the United States of America, do proclaim that a national 
emergency exists in connection with and to the extent 
necessary for the proper observance, safeguarding, and en- 
forcing of the neutrality of the United States and the 
strengthening of our national defense within the limits of 
peace-time authorizations. Specific directions and author- 
izations will be given from time to time for carrying out 
these two purposes. 

In witness whereof I have hereunto set my hand and 
caused the seal of the United States of America to be 
affixed. 

Done at the City of Washington this eighth day of Sep- 
tember, in the year of our Lord nineteen hundred 

[L. S.] and thirty-nine, and of the Independence of the 
United States of America the one hundred and 
sixty-fourth. 

FEANKLIN D. EOOSEVELT 

By the President: 
Cordell Hull 

Secretary of State. 



APPENDIXES 145 

IX. Proclamation of a State of War Under Act 
of November 4, 1939. 

(Proclamation No. 2374, 4 Federal Register, 4493.) 

Whereas section 1 of the joint resolution of Congress ap- 
proved November 4, 1939, provides in part as follows : 

"That whenever the President, or the Congress by con- 
current resolution, shall find that there exists a state of war 
between foreign states, and that it is necessary to promote 
the security or preserve the peace of the United States or 
to protect the lives of citizens of the United States, the 
President shall issue a proclamation naming the states in- 
volved; and he shall, from time to time, by proclamation^ 
name other states as and when they may become involved in 
the war." 

And whereas it is further provided by section 13 of the 
said joint resolution that 

"The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law as may be 
necessary and proper to carry out any of the provisions of 
this joint resolution ; and he may exercise any power or au- 
thority conferred on him by this joint resolution through 
such officer or officers, or agency or agencies, as he shall 
direct." 

Now, therefore, I, Franklin D. Roosevelt, President of 
the United States of America, acting under and by virtue of 
the authority conferred on me by the said joint resolution, 
do hereby proclaim that a state of war unhappily exists 
between Germany and France; Poland; and the United 
Kingdom, India, Australia, Canada, New Zealand and the 
Union of South Africa, and that it is necessary to promote 
the security and preserve the peace of the United States and 
to protect the lives of citizens of the United States. 

And I do hereby enjoin upon all officers of the United 
States, charged with the execution of the laws thereof, the 
utmost diligence in preventing violations of the said joint 
resolution and in bringing to trial and punishment any 
offenders against the same. 

And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me by 
the said joint resolution, as made effective by this my procla- 



146 APPENDIXES 

mation issued thereunder, which is not specifically delegated 
by Executive order to some other officer or agency of this 
Government, and the power to promulgate such rules and 
regulations not inconsistent with law as may be necessary 
and proper to carry out any of its provisions. 

And I do hereby revoke my proclamations nos. 2349, 
2354, and 2360 issued on September 5, 8, and 10, 1939, respec- 
tively, in regard to the export of arms, ammunition, and 
implements of war to France; Germany; Poland; and the 
United Kingdom, India, Australia, and New Zealand; to 
the Union of South Africa ; and to Canada. 

In witness whereof, I have hereunto set my hand and 
caused the Seal of the United States of America to be affixed. 
Done at the city of Washington this fourth day of No- 
vember, in the year of our Lord nineteen hun- 
[seal] dred and thirty -nine, and of the Independence 
of the United States of America the one hundred 
and sixty-fourth, at 12.04 p. m. 

Franklin D. Roosevelt 
By the President : 
Cordell Hull 

Secretary of State. 

X. Proclamation Defining Combat Areas. 

(Dept. of State Bulletin, Vol. I, No. 19, November 4, 1939, 
pp. 454-455.) 

Whereas section 3 of the joint resolution of Congress ap- 
proved November 4, 1939, provides as follows : 

"(a) Whenever the President shall have issued a procla- 
mation under the authority of section 1(a), and he shall there- 
after find that the protection of citizens of the United States 
so requires, he shall, by proclamation, define combat areas, 
and thereafter it shall be unlawful, except under such rules 
and regulations as may be prescribed, for any citizen of the 
United States or any American vessel to proceed into or 
through any such combat area. The combat areas so defined 
may be made to apply to surface vessels or aircraft, or both. 

" (b) In case of the violation of any of the provisions of this 
section by any American vessel, or any owner or officer there- 
of, such vessel, owner, or officer shall be fined not more than 



APPENDIXES 147 

$50,000 or imprisoned for not more than five years, or both. 
Should the owner of such vessel be a corporation, organiza- 
tion, or association, each officer or director participating in 
the violation shall be liable to the penalty hereinabove pre- 
scribed. In case of the violation of this section by any citizen 
traveling as a passenger, such passenger, may be fined not 
more than $10,000 or imprisoned for not more than two years 
or both. 

"(c) The President may from time to time modify or ex- 
tend any proclamation issued under the authority of this sec- 
tion, and when the conditions which shall have caused him to 
issue any such proclamation shall have ceased to exist he shall 
revoke such proclamation and the provisions of this section 
shall thereupon cease to apply, except as to offenses committed 
prior to such revocation." 

And whereas it is further provided by section 13 of the 
said joint resolution that — 

"The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law as may be 
necessary and proper to carry out any of the provisions 
of this joint resolution; and he may exercise any power 
or authority conferred on him by this joint resolution 
through such officer or officers, or agency or agencies, as 
he shall direct." 

Now, therefore, I, Franklin D. Roosevelt, President 
of the United States of America, acting under and by virtue 
of the authority conferred on me by the said joint resolu- 
tion, do hereby find that the protection of citizens of the 
United States requires that there be defined a combat area 
through or into which it shall be unlawful, except under 
such rules and regulations as may be prescribed, for any 
citizen of the United States or any American vessel, whether 
a surface vessel or an aircraft, to proceed. 

And I do hereby define such combat area as follows : 

All the navigable waters within the limits set forth here- 
after. 

Beginning at the intersection of the North Coast of Spain 
with the meridian of 2° 45' longitude west of Greenwich; 

Thence due north to a point in 43° 54' north latitude ; 



148 APPENDIXES 

Thence by rhumb line to a point in 45° 00' north latitude; 
20° 00' west longitude; 

Thence due north to 58° 00' north latitude; 

Thence by a rhumb line to latitude 62° north, longitude 
2° east; 

Thence by a rhumb line to latitude 60° north, longitude 
5° east; 

Thence due east to the mainland of Norway ; 

Thence along the coast line of Norway, Sweden, the Baltic 
Sea and dependent waters thereof, Germany, Denmark, the 
Netherlands, Belgium, France and Spain to the point of 
beginning. 

And I do hereby enjoin upon all officers of the United 
States, charged with the execution of the laws thereof, the 
utmost diligence in preventing violations of the said joint 
resolution and in bringing to trial and punishment any 
offenders against the same. 

And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me 
by the said joint resolution as made effective by this my 
proclamation issued thereunder, which is not specifically 
delegated by Executive order to some other officer or agency 
of this Government, and the power to promulgate such 
rules and regulations not inconsistent with law as may be 
necessary and proper to carry out any of its provisions. 

In witness whereof, I have hereunto set my hand and 
caused the Seal of the United States of America to be 
affixed. 

Done at the city of Washington this fourth day of 
November, in the year of our Lord nineteen hun- 

[seal] dred and thirty-nine, and of the Independence 
of the United States of America the one hundred 
and sixty-fourth, at 3 p.m. 

FRANKLIN D. ROOSEVELT 

By the President : 
Cordell Hull 

Secretary of State. 



APPENDIXES 149 

XII. Regulations Concerning Travel on Bellig- 
erent Vessels. 

(Dept. of State Bulletin, Vol. No. 20, November 11, 1939, 
pp. 480-481.) 

Section 5 of the joint resolution of Congress approved 
November 4, 1939, provides as follows : 

"(a) Whenever the President shall have issued a proc- 
lamation under the authority of section 1 (a) it shall there- 
after be unlawful for any citizen of the United States to 
travel on any vessel of any state named in such proclamation, 
except in accordance with such rules and regulations as may 
be prescribed. 

"(b) Whenever any proclamation issued under the au- 
thority of section 1 (a) shall have been revoked with respect 
to any state the provisions of this section shall thereupon 
cease to apply with respect to such state, except as to offenses 
committed prior to such revocation." 

Section 15 of the said joint resolution provides as follows : 

"In every case of the violation of any of the provisions 
of this joint resolution or of any rule or regulation issued 
pursuant thereto where a specific penalty is not herein pro- 
vided, such violator or violators, upon conviction, shall be 
fined not more than $10,000, or imprisoned not more than 
two years, or both." 

On November 4, 1939, the President issued a proclamation 
in respect to France; Germany; Poland; and the United 
Kingdom, India, Australia, Canada, New Zealand, and the 
Union of South Africa under the authority of section 1 of 
the said joint resolution, thereby making effective in respect 
to these countries the provisions of section 5 of the said joint 
resolution quoted above. 

Section 13 of the said joint resolution provides as follows : 

"The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law as may be 
necessary and proper to carry out any of the provisions of 
this joint resolution; and he may exercise any power or au- 
thority conferred on him by this joint resolution through 
such officer or officers, or agency or agencies, as he shall 
direct." 



150 APPENDIXES 

The President's proclamation of November 4, 1939, issued 
pursuant to the provisions of section 1 of the above- 
mentioned joint resolution provides in part as follows : 

"And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me 
by the said joint resolution, as made effective by this my 
proclamation issued thereunder, which is not specifically 
delegated by Executive order to some other officer or 
agency of this Government, and the power to promulgate 
such rules and regulations not inconsistent with law as may 
be necessary and proper to carry out any of its provisions." 

In pursuance of those provisions of the law and of the 
President's proclamation of November 4, 1939, which are 
quoted above, the Secretary of State announces the follow- 
ing regulations : 

American diplomatic and consular officers and their fami- 
lies, members of their staffs and their families, and Ameri- 
can military and naval officers and personnel and their fami- 
lies may travel pursuant to orders on vessels of France; 
Germany; Poland; or the United Kingdom, India, Aus- 
tralia, Canada, New Zealand and the Union of South Africa 
if the public service requires. 

Other American citizens may travel on vessels of France ; 
Germany; Poland; or the United Kingdom, India, Aus- 
tralia, Canada, New Zealand and the Union of South Africa, 
provided, however, that travel on or over the north Atlantic 
Ocean north of 35 degrees north latitude and east of 66 
degrees west longitude or on or over other waters adjacent 
to Europe or over the continent of Europe or adjacent 
islands shall not be permitted except when specifically 
authorized by the Secretary of State in each case. 

Cordell Hull, 

Secretary of State. 
November 6, 1939. 



APPENDIXES 151 

XIII. Regulations concerning Arms on American 
Vessels. 

(Dept. of State Bulletin, Vol. I, Xo. 20, November 11, 
1939, pp. 481^82.) 

Regulations Under Section 6 of the Joint Resolution 
of Congress Approved November 4, 1939 

Section 6 of the joint resolution of Congress approved 
November 4, 1939, provides as follows : 

"Whenever the President shall have issued a proclamation 
under the authority of section 1 (a), it shall thereafter be 
unlawful, until such proclamation is revoked, for any Amer- 
ican vessel, engaged in commerce with any foreign state to 
be armed, except with small arms and ammunition therefor, 
which the President may deem necessary and shall publicly 
designate for the preservation of discipline aboard any such 
vessel." 

Section 15 of the said joint resolution provides as follows : 

"In every case of the violation of any of the provisions 
of this joint resolution or of any rule or regulation issued 
pursuant thereto where a specific penalty is not herein pro- 
vided, such violator or violators, upon conviction, shall be 
fined not more that $10,000, or imprisoned not more than two 
years, or both." 

On November 4, 1939, the President issued a proclamation 
in respect to France; Germany; Poland; and the United 
Kingdom, India, Australia, Canada, New Zealand and the 
Union of South Africa under the authority of section 1 of 
the said joint resolution, thereby making effective the pro- 
visions of section 6 of the said joint resolution quoted above. 

Section 13 of the said joint resolution provides as follows : 

u The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law as may be 
necessary and proper to carry out any of the provisions of 
this joint resolution; and he may exercise any power or 
authority conferred on him by this joint resolution through 
such officer or officers, or agency or agencies, as he shall 
direct." 



152 APPENDIXES 

The President's proclamation of November 4, 1939, issued 
pursuant to the provisions of section 1 of the above-men- 
tioned joint resolution provides in part as follows : 

"And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred upon 
me by the said joint resolution, as made effective by this 
my proclamation issued thereunder, which is not specifically 
delegated by Executive order to some other officer or agency 
of this Government, and the power to promulgate such 
rules and regulations not inconsistent with law as may be 
necessary and proper to carry out any of its provisions." 
In pursuance of those provisions of the law and of the 
President's proclamation of November 4, 1939, which are 
quoted above, the Secretary of State announces the follow- 
ing regulations: American vessels engaged in commerce 
with foreign states may carry such small arms and ammuni- 
tion as the masters of these vessels may deem indispensable 
for the preservation of discipline aboard the vessels. 

XIV. Flights of Belligerent Military Aircraft. 

(Dept. of State, Executive Order, No. 666, December 7, 
1939.) 

Since the enactment of the Neutrality Act of 1939, the 
Department has received frequent inquiries as to whether 
authorization could be obtained to make fly-away deliveries 
of military aircraft purchased by belligerent countries. 
The following statement is issued with a view to clarifying 
the position being taken by the Department on this question : 

Section 6 (a) of the Air Commerce Act of 1926, as 
amended, contains the following provisions: "Aircraft a 
part of the armed forces of any foreign nation shall not be 
navigated in the United States, including the Canal Zone, 
except in accordance with an authorization granted by the 
Secretary of State". The authorization referred to in this 
provision of law is not being granted for military aircraft 
purchased by belligerents since it would appear to be incon- 
sistent with the neutral obligations of the United States 
to permit such aircraft to be flown within or from the 
territory of the United States. For the foregoing purposes, 
the following will be treated as military aircraft: 



APPENDIXES 153 

(1) All aircraft in Category III of the President's 
Proclamation of May 1, 1937, and 

(2) Aircraft in Category V of the President's Proc- 
lamation of May 1, 1937, purchased by or destined for 
the armed forces of a foreign nation. 

It should be pointed out that the above is not applicable 
while the legal title to the aircraft in question remains with 
a citizen of the United States. 

XV. Regulations Concerning Travel Into Combat 
Areas. 

(Dept. of State, Departmental Order No. 831, December 
16,1939.) 

Pursuant to the authority contained in the President's 
Proclamations nos. 2374 and 2376 issued on November 4, 1939, 
in pursuance of sections 1 and 3, respectively, of the Neutral- 
ity Act of 1939, approved November 4, 1939, 1, Cordell Hull. 
Secretary of State of the United States, hereby prescribe the 
following regulation, amending the regulations issued on 
November 6, 1939, as amended by regulation issued on No- 
vember 17, 1939, relating to travel on belligerent vessels, and 
also amending the regulations issued on November 17, 1939, 
relating to travel into or through combat areas. 

Individuals who possess both American nationality and a 
foreign nationality, and who habitually reside in the foreign 
state of which they are nationals, and who are using passports 
of such foreign state, may, while en route to and from such 
state, travel on a belligerent vessel across the English Chan- 
nel, the Irish Sea or St. George's Channel without obtaining 
specific authority and without an American passport endorsed 
as valid for such travel. Individuals who undertake travel 
under the conditions indicated shall do so on the understand- 
ing that they will look for protection to the foreign state 
whose passport they carry. 

CORDELL HULL 

December 14, 1939. 



247670—40 11 



154 APPENDIXES 

XVI. Travel on Belligerent Vessels in the Bay of 
Fundy. 

(Department of State Bulletin, Vol. II, No. 30, January 
20, 1940, p. 56.) 

Following is a regulation relating to travel on belligerent 
vessels, which is codified under Title 22 : Foreign Relations ; 
Chapter I: Department of State; and Subchapter A: The 
Department, in accordance with the requirements of the 
Federal Register and the Code of Federal Regulations: 

"Pursuant to the authority contained in the President's 
Proclamation No. 2374 of November 4, 1939, issued pursuant 
to section 1 of the Neutrality Act of 1939, I, Cordell Hull, 
Secretary of State of the United States, hereby prescribe 
the following regulation, amending the regulations issued on 
November 6, 1939, as amended by regulations issued on 
November 17, 1939, and December 14, 1939, relating to travel 
on belligerent vessels : 

"Part 55C— Travel 



"§ 55C.3 American nationals in combat areas — (g) Travel 
on belligerent vessels in Bay of Fundy. American na- 
tionals may travel on belligerent vessels in the Bay of Fundy 
and its dependent waters. (Sec. 1, Public Res. 54, 76th 
Cong., 2d sess., approved Nov. 4, 1939; Proc. No. 2374) 

Cordell Hull 
Secretary of State.' 1 ' 1 
"January 16, 1940." 

XVII. Proclamation Defining Combat Area, April 
10, 1940. 

(Proclamation No. 8389, Department of State Bulletin, 
Vol. II, No. 42, April 13, 1940, pp. 378-379. 

Whereas section 3 of the joint resolution of Congress 
approved November 4, 1939, provides as follows : 

"(a) Whenever the President shall have issued a procla- 
mation under the authority of section 1 (a), and he shall 
thereafter find that the protection of citizens of the United 
States so requires, he shall, by proclamation, define combat 
areas, and thereafter it shall be unlawful, except under such 



APPENDIXES 155 

rules and regulations as may be prescribed, for any citizen 
of the United States or any American vessel to proceed into 
or through any such combat area. The combat areas so 
defined may be made to apply to surface vessels or aircraft, 
or both. 

"(b) In case of the violation of any of the provisions of 
this section by any American vessel, or any owner or officer 
thereof, such vessel, owner, or officer shall be fined not more 
than $50,000 or imprisoned for not more than five years, or 
both. Should the owner of such vessel be a corporation, 
organization, or association, each officer or director partici- 
pating in the violation shall be liable to the penalty herein- 
above prescribed. In case of the violation of this section 
by any citizen traveling as a passenger, such passenger may 
be fined not more than $10,000 or imprisoned for not more 
than two years, or both. 

"(c) The President may from time to time modify or 
extend any proclamation issued under the authority of this 
section, and when the conditions which shall have caused 
him to issue any such proclamation shall have ceased to 
exist he shall revoke such proclamation and the provisions 
of this section shall thereupon cease to apply, except as to 
offenses committed prior to such revocation." 

And whereas it is further provided by section 13 of the 
said joint resolution that 

"The President may, from time to time, promulgate such 
rules and regulations, not inconsistent with law as may be 
necessary and proper to carry out any of the provisions of 
this joint resolution; and he may exercise any power or au- 
thority conferred on him by this joint resolution through 
such officer or officers, or agency or agencies, as he shall 
direct." 

And whereas on November 4, 1939, I issued a proclama- 
tion in accordance with the provision of law quoted above 
defining a combat area. 

Now, therefore, I, Franklin D. Roosevelt, President of 
the United States of America, acting under and by virtue 
of the authority conferred on me by section 3 of the joint 
resolution of Congress approved November 4, 1939, do 
hereby find that the protection of citizens of the United 



156 APPENDIXES 

States requires that there be an extension of the combat 
area defined in my proclamation of November 4, 1939, 
through or into which extended combat area it shall be un- 
lawful, except under such rules and regulations as may be 
prescribed, for any citizen of the United States or any 
American vessel, whether a surface vessel or an aircraft, to 
proceed. 

And I do hereby define the extended combat area as 
follows : 

All the navigable waters within the limits set forth here- 
after. 

Beginning at the intersection of the North Coast of Spain 
with the meridian of 2°45' longitude west of Greenwich; 

Thence due north to a point in 43° 54' north latitude; 

Thence by a rhumb line to a point in 45° north latitude, 
20° west longitude ; 

Thence due north to 58° north latitude; 

Thence by a rhumb line to a point in 76° 30' north latitude, 
16 c 35' east longitude; 

Thence by a rhumb line to a point in 70° north latitude, 
44° east longitude; 

Thence due south to the mainland of the Union of Soviet 
Socialist Republics ; 

Thence along the coastline of the Union of Soviet Socialist 
Republics, Finland, Norway, Sweden, the Baltic Sea and 
dependent waters thereof, Germany, Denmark, the Nether- 
lands, Belgium, France, and Spain to the point of beginning. 

And I do hereby enjoin upon all officers of the United 
States, charged with the execution of the laws thereof, the 
utmost diligence in preventing violations of the said joint 
resolution; and in bringing to trial and punishment any 
offenders against the same. 

And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me 
by the said joint resolution as made effective by this my 
proclamation issued thereunder, which is not specifically 
delegated by Executive order to some other officer or agency 
of this Government, and the power to promulgate such rules 
and regulations not inconsistent with law as may be neces- 
sary and proper to carry out any of its provisions. 



APPENDIXES 157 

In witness whereof, I have hereunto set my hand and 
caused the Seal of the United States of America to be 
affixed. 

Done at the City of Washington this tenth day of April, 
in the year of our Lord nineteen hundred and 
[seal] forty, and of the Independence of the United 
States of America the one hundred and sixty- 
fourth. 

Franklin D. Roosevelt 
By the President: 
Cordell Hull 

Secretary of State, 



INDEX 

Aircraft : Page 

Use of for escort 35-38 

and neutral territory 85-89 

Altniark case, The 14-1G 

Anglo-Iranian Oil Co 3 

Appam, The 36 

Armed Merchantmen 52-54 

Asylum in neutral ports. (See Distress.) 

Base, neutral territory as 85-91 

Blockade : 

during 1939-40 war 20-24 

U. S. position on 20-24 

Borchard, E. M 15-16, 52 

British Dominions and neutrality 81-85 

Brussels Convention, 1937 5 

Canada and neutrality 82, 84 

Capture : Escort and deviation after 35-38 

City of Flint, The 24-28 

Commercial submarines 50 

Contiguous zones 60-66 

history of 62-64 

for defense 64-65 

and Declaration of Panama 66-80 

Contraband : 

Seizure for 16 

Lists of, 1939-40 war 17-20 

City of Flint 24 

Control : Meaning of, over captured ship 35-38 

Criterion of private capacity 9-13 

Declaration of London 16 

Declaration of Panama 66-80 

Defense: Contiguous zones for 64-65 

Defensive sea areas 65 

(See also Contiguous zone.) 

Deviation : After capture 35-38 

Diplomatic immunities 96 

Distress 42-44 

Eire, neutrality of 82-84 

Escort of captured vessel 35-38 

Force majeure. (See Distress.) 
France : 

Contraband list, 1939 19 

and Declaration of Panama 74-76 

Friedmann, W 3-4, 9 

159 



160 INDEX 

Germany : Page 

Contraband list, 1939 18 

and Declaration of Panama 76-78 

Gidel, G 61 

Government control of business. ( See State control and neutral- 
ity.) 

G?~af von Spee 69-71 

(See also Declaration of Panama.) 

Great Britain : 

and contiguous zones 62-63 

contraband list, 1939 17 

and Declaration of Panama 68-69, 71-74 

Dominions and Neutrality 81-85 

treatment of mails 28-34 

Hague Conventions : 

V 7,91 

XI 29 

XIII 7, 25, 44, 91 

Harvard Draft Codes 5, 8, 42, 44, 45, 46, 47, 61, 64, 65, 86, 92 

Havana Convention on Maritime Neutrality 45, 87, 91 

Hyde, C. C 44 

International law : 

Armed merchant ships 53 

Criterion of private capacity 9, 13 

Declaration of Panama 78-80 

Effect upon, of state controls 2-13 

Meaning of distress 42-44 

Repair of damage 44-46 

Latin America and neutrality 51-52 

(See also Panama, Declaration of, 1939.) 

Mails, treatment of : 28-34 

Neutrality : 

Airplanes 85-89 

Altmark, The 14-16 

Armed merchantmen 52-53 

British Dominions 81-85 

City of Flint 24-28 

Criterion of private capacity 9-13 

Declaration of Panama 66-80 

Defensive Zones 65, 66-80 

Effect of State controls 2-13 

Qualified neutrality 54-55 

Repair of damage 44-46 

Scandinavian rules 45, 87 

State responsibility 6-9 

Submarine regulations 46-47 

U. S. and Latin America 51-52 

Vessels in distress 42-44 



INDEX 161 

Neutrality Acts of 1937 and 1939 : Page 

Armed merchantmen 52-53 

Latin America 51-52 

Presidential Proclamation 48-49 

Provisions on Submarines 47 

"States involved in war" 56-57 

Use of American ports 89-90 

Neutral territory : 

As a base 85-89 

Conventions on use of 91-92 

President's Proclamation 91 

U. S. legislation 89^90 

Nonbelligerency 54 

( See also qualified Neutrality and U. S. S. R. ) 
Norway : 

Altmark case 14-16 

City of Flint 24-28 

Panama : U. S. treaty with 92-95 

Panama Canal Zone : Airplanes in 87 

Panama, Declaration of, 1939 66-80 

Prenss, L 8 

Private enterprise : Distinguished from public 9-13 

(See also Neutrality.) 

Public vessels: Visit and search of 14-15 

Qualified neutrality 54-55 

Repair of ships' damage 44-46 

Responsibility of States : 

Criterion of private capacity 9-13 

and neutrality 6-9 

Norway and the Altmark 14-16 

Norway and the City of Flint 24-28 

Scandinavian neutrality rules 45,87 

Schooner Exchange v. McFaddon 85 

Spaight, J. M 85 

State Control of business 2-13 

Brussels Ship Convention 5 

Criterion of private capacity 9-13 

Effect upon international law 2-13 

In War of 1914-1918 12-13 

(See also Neutrality.) 
Submarines : 

Commercial 50 

Neutral regulations , 46-47 

Proclamations concerning 48-49 

Territorial waters. (See contiguous zones, distress, neutrality, 
and submarines.) 



162 INDEX 

United States : Pag c 

Armed merchantmen 52-53 

Attitude on blockade 20-24 

and contiguous zones 63-64 

Neutrality and Latin America 51-52 

Proclamation on ships' damages 45 

Proclamation on submarines 48-49 

Treatment of mails 28-34 

Treaty with Panama 92-95 

U. S. S. R 2,25 

Neutrality of 6 

Union of South Africa and neutrality 81, 82, 84 

Visit and search : 

Capture and escort after 35-38 

City of Flint L 24 

Of public vessels 14-15 

War of 1939-40 : 

Altmark case 14-16 

Armed merchantmen in 52-53 

Blockade during 20-24 

City of Flint case 24-28 

Contraband lists in 17-20 

Neutrality of British Dominions in 81-85 

Panama, Declaration of 66-80 

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